Beatty v. Schatz

2009 BCSC 707 Beatty v. Schatz IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Beatty v. Schatz, 2009 BCSC 707 Date: 20090331 Docket: E090060 Registry: Vancouver Between: Deirdre Mary Beatty Petitioner And Ernst Alexander Schatz Respondent Before: The Honourable Madam Justice Martinson Oral Reasons for Judgment In Chambers March 31, 2009 Counsel for Petitioner W. R. Storey Counsel for Respondent G. Vlug Place of Hearing: Vancouver, B.C. Nature of the Application [1] This is an application by the mother, Ms. Beatty, for the return of A, who turned 11 on January 4, 2009, to Ireland. He has been here with his father, Mr. Schatz, since the end of June 2008. Mr. Schatz opposes the return and says A is adamant that he does not want to return and is of an age and has the maturity to make that decision. Mr. Schatz applies either to have me interview A--I am told he is available--or that he should be interviewed by a qualified psychologist who can assist the Court in determining his maturity and the independence of his views. [2] The parties separated in 2003, when they were living in Canada. Ms. Beatty took A, his half-sister R, and his half-brother C (R and C are not Mr. Schatz's biological children) to Ireland for a vacation. She did not return to Canada. Mr. Schatz commenced proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983, No. 35 (the "Hague Convention"), but then withdrew them; there was an attempt at reconciliation, and they ultimately separated in October 2004. [3] It is not in dispute that the legal status now in Ireland is that the parents share joint legal custody of A, with his primary residency with his mother, R, and C. That occurred after a custody and access report was prepared in Ireland in 2006 at the direction of the court. [4] In February 2008, Mr. Schatz applied to the Circuit Family Court in the County of the City of Dublin, ("the Irish court"), asking that court to award sole custody of A to him so that he could move to Canada with A. There was a direction on April 22, 2008, that there be a further custody and access report done by Dr. Sheehan. Dr. Sheehan has since prepared an interim report. [5] It is also not in dispute that Mr. Schatz, at the same time, asked for the permission of the Irish court to bring A to Canada for a vacation from June 30, 2008 to July 30, 2008. He gave a sworn undertaking to the Irish court to return A. He did not do so and A has been here ever since. [6] Ms. Beatty commenced this return application by way of petition filed January 12, 2009. In the meantime, A was enrolled in school here and has attended school here ever since. Summary of the Arguments of the Parties Ms. Beatty [7] Ms. Beatty argues that the return is mandatory under Article 12 of the Hague Convention. A was habitually resident in Ireland when Mr. Schatz refused to return him. She had rights of custody; as a joint custodial parent she had the right to make the decision as to where A would live. In addition, the Irish court had rights of custody: Fasiang v. Fasiangova, 2008 BCSC 1339, 87 B.C.L.R. (4th) 118. [8] She emphasizes that this Court is not to decide the merits of the case. That is a decision for the Irish court. This is made clear in Article 16 of the Hague Convention. She says that Mr. Schatz's materials are filled with custodial allegations which are not relevant at this stage. [9] She says that Article 13 exceptions, dealing with grave harm and a child's objections, do not apply. The exceptions are extremely narrow and the philosophy of the Hague Convention is that returns should be ordered in virtually all cases. She says there is a heavy onus on the abductor to prove the exceptions. Even if they are proven, the Court is not required to keep the child here. The Court still has discretion to return the child. [10] She argues that the test for proving grave risk of harm is a very strict one; the Court has to be satisfied that the situation is so serious that the Irish court could not protect A. The situation has to be intolerable. There is, therefore, a heavy onus on Mr. Schatz and she says he has not discharged it. She says the custody and access reports clearly do not support the conclusion that there is a grave risk. Ms. Beatty's lawyer submits that any such suggestion is a fabrication. She argues that Mr. Schatz chose to ask the court to decide the issue. He was satisfied with the joint custody arrangement until he wanted to move to Canada. She takes serious issue with any suggestion that Dr. Sheehan is biased. He was appointed by the Irish court. She presented evidence that he would not have spoken to any of the parties other than in the course of his investigation; he is a well-qualified expert, often used by the Irish court for this purpose. [11] With respect to the portion of Article 13 of the Hague Convention dealing with a child's objections, Ms. Beatty says that it is not appropriate or necessary to delay the return to Ireland so as to obtain more information about A's views. Ms. Beatty concedes that A is saying he does not want to be returned to Ireland. However, she argues that there is already sufficient information about his views in the materials and the Irish reports. In any case, his views, she says, are unduly influenced by both the actions and the views of his father and should not be considered as they are not mature, independent views. [12] She says Mr. Schatz is manipulating A. The Court should conclude, based on the evidence, that Mr. Schatz has been discussing the matter with A extensively. She uses as an example the fact that at the time this application was served, A appeared angrier. That is the evidence of Mr. Schatz, and she says A was obviously told about the application. [13] She argues that the Court should be concerned about the note that A has written. The note itself shows the undue influence. He says, among other things, that if he has to be forced back, he is never going to see his dad again until he is much older. The Court, she says, should conclude that Mr. Schatz told A that. She says this is consistent with the fact that even now Mr. Schatz advises the Court, in so many words, that he may well not go back to Ireland if the Court orders A's return. She also says that A remarks about his mother's motives in the note, which is suspicious. [14] She says that Mr. Schatz has refused to deal with her directly on the question of A's return. He made A phone her and tell her he was not returning to Ireland. He was only ten at the time. She disagrees that she told A it was okay if he stayed and went to school here. In the only correspondence she had from Mr. Schatz, when he had simply advised her that A was staying, she e-mailed back to say she disagreed and A should be returned. Mr. Schatz never replied. [15] Ms. Beatty argues that Mr. Schatz is using A to get himself out of a bad spot. He has flagrantly disregarded his undertaking to the Irish court and is using A as a tool to indirectly achieve his goals. She argues, relying on Thorne v. Dryden-Hall (1995), 18 R.F.L. (4th) 15 (B.C.S.C.), that Mr. Schatz cannot attempt through his own conduct--telling A he will not see him again if he is returned to Ireland--to prevent a return that is otherwise justifiable. [16] She says the Court should follow the approach of the English court in P v. P, [1992] 1 FLR 155, [1992] 1 FCR 468. That court emphasized that the underlying assumption of the Hague Convention was that courts of all its signatory countries were equally capable of ensuring a fair hearing to the parties and a skilled and humane evaluation of the issues of child welfare involved; its underlying purpose was to ensure a brisk resolution to those issues in the country of the child's habitual residence. [17] In dealing with objections of a child and the suggestion that an investigation is mandatory, the court in that case said that for the absconding parent to be allowed to insist, as a right, that the Hague Convention's mandatory proceedings should be suspended while the investigation was made into his or her objections and maturity would be contrary to that assumption and purpose. It is for the judge to decide, in the exercise of discretion, whether the child's objections and degree of maturity should be taken into account and whether or not further investigation of the matter should be made. The court found that there was no advantage to be gained and valuable time would be lost if the application was adjourned for that purpose. [18] Ms. Beatty says that in any event, the Court's residual discretion to still return A to Ireland should be exercised in all of the circumstances. Mr. Schatz [19] Mr. Schatz argues that there was not a wrongful retention as Ms. Beatty consented to A staying in Canada. [20] However, the main focus of his argument is that A is adamant that he does not want to go back, for very good reason. He says that both exceptions in Article 13, the grave risk exception and the objection of the child exception, apply. [21] He argues that it is very important to give A a chance to have a say in the proceedings. He is a mature, bright child who wants the Court to know what he thinks. He has sent a note to the Court. [22] There is authority to hear the wishes of the child based on Article 13 of the Hague Convention. The Court's decision should also be informed by Article 12 of the United Nations Convention on the Rights of the Child, 1989, Can. T.S. 1992/3, which has been ratified by Canada. That Article says: 1. State parties shall assure to the child who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. [23] He relies, through his counsel, on a recent case of the Irish High Court, N v. N, [2008] IEHC 382, dealing with the question of interviewing and assessing children. That case involved the application of both the Hague Convention and European Union regulations. The latter has a specific provision saying that, when Articles 12 and 13 of the Hague Convention are applied, "it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity." [24] The court concluded that there are two separate issues. The first is whether or not the court should give the child an opportunity to be heard. This is distinct, the court said, from the separate issue of the appropriate weight, if any, that should be given by the court to the views expressed by the child in determining any substantive issue in the application for the return of the child. [25] Mr. Schatz says he has not manipulated A at all, but is just helping him get his views out in the open. Mr. Schatz says that this is a matter that is really between A and his mother, not Mr. Schatz and Ms. Beatty. Mr. Schatz feels that Ms. Beatty is trying to prevent an interview with A so that she can make allegations against him about poisoning A. He points out that they have been asking for a Views of the Child Report since February. She would not agree. [26] Mr. Schatz argues that it is necessary to consider some of the background information that would also be relevant to the best interests test because it is relevant to the genuineness of the views that A is giving. I allowed his lawyer to do that. In summary, he says that the background information, including the reports produced in Ireland, show that A has good reason to believe that his mother will deny access to his father if he is returned. He also says it shows that there is a risk of grave psychological harm if he is returned to his mother. Mr. Schatz's lawyer says an emergency situation was developing for A that is continuing. He points to a number of parts of the first custody and access report that he says indicate very concerning behaviour on the part of Ms. Beatty. [27] What A is trying to tell the Court, says Mr. Schatz, is that the situation with his mother is intolerable. By way of example only, he points to the evidence that she has had the children pray for their sick father because of his alcoholism. The evidence, Mr. Schatz argues, shows that he is not an alcoholic. A further example, he says, is the fact that the author of the 2006 custody and access report recommended extensive therapy for Ms. Beatty. She has not done so. [28] Mr. Schatz also argues that I should pay no attention to the preliminary report of Dr. Sheehan as he has demonstrated bias and was likely influenced by Ms. Beatty. Decision - Wrongful Retention [29] I am satisfied that A was and continues to be wrongfully retained in Canada. I agree with counsel for Ms. Beatty that A was habitually resident in Ireland when Mr. Schatz did not return him by July 30, 2008. Ms. Beatty had rights of custody granted by the Irish court. Her agreement was necessary before his residence could be changed; she did not agree. [30] In addition, the Irish court had rights custody. As this court noted in Fasiang, at paras. 93 to 97, the law provides that where a foreign court is properly and actively seized of an issue as to where a child should reside, and where, while those proceedings are pending, the child is removed from its place of habitual residence without the consent of the court, the court hearing the application for return must recognize those rights of custody in the foreign court. [31] The same reasoning applies to a wrongful retention. There is a sound policy basis for the law. When a parent places issues concerning the child that are in dispute, including the issue of where the child should reside, before a court, the court has the right to decide the disputed issues, including the right to decide where the child should reside. This is particularly so when Mr. Schatz undertook to the Irish court to return A to Ireland. [32] There has not been legal consent or acquiescence. This Court must return A unless Article 13 applies. Decision - Views of the Child [33] There can be little doubt that the views of children can be very important in decisions that affect their best interests. Children should normally "have a voice" in these important decisions that can have such a significant impact on their lives: L.E.G v. A.G., 2002 BCSC 1455. [34] At the trial of this matter, whether it is here or in Ireland, A's views and their significance will be important factors. [35] The Hague Convention considerations are somewhat different. The Hague Convention does say in Article 13 that the Court may, not must, refuse to order the return of the child if the Court 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 the child's views. [36] The Court would need to know whether the child objects and why, and if the child has reached that age and degree of maturity. The concept of maturity includes the ability to sift through what is happening and to make independent decisions not influenced unduly by either parent. [37] Here, there is little doubt that A is saying that he does not want to go back to Ireland. There is plenty of information before the Court about that. However, that information is not coming directly from him and may well not include all of his reasons for not wanting to return. [38] He is obviously an intelligent child who wants the Court to know what he thinks. That information could be obtained by an interview by me, as the judge, or by a report prepared by a qualified psychologist. [39] There is, however, more information required. The Court would need to know whether he has the maturity to sift through what is happening and make independent decisions in his best interests. Only then would the Court be in a position to decide the significance of his views to the return application. There is some information from which I could draw inferences about undue influence. However, a professional psychologist could also provide helpful information. [40] After careful consideration, I have concluded that A should have a chance to tell the Court what he thinks and why. The Court will then also need to assess his level of maturity as I have defined it. The Court would be well-placed to hear what he thinks and why, but as I have said, a psychologist, especially in the circumstances of this case, would be better placed to assess his level of maturity. [41] I, therefore, allow the application for a Views of the Child Report. [42] It is true that this will result in some delay. Prompt returns, when appropriate, are important. However, in this case, Ms. Beatty, for whatever reason, did not bring her application until mid-January, thus allowing A to go to school here for several months. He is relatively close to finishing his school year here. In that context, a further delay of two weeks or so to obtain this information is appropriate. [43] In my opinion, the author of the report should speak not only to A, but also to each parent. That person should have the benefit of reading the materials that are before the Court. [SUBMISSIONS] [44] The issues I must now decide are these: (1) who should pay for the report; (2) who should participate in the report; (3) parenting time; and (4) what specifically A should be told. [45] Turning to the cost of the report, this report was requested by Mr. Schatz. The onus is on you, Mr. Schatz. You wanted the report; in my opinion and in all the circumstances you should pay for it. [46] With respect to who should participate and, in particular, whether R should participate, I said in my decision specifically that the person doing the report should speak to A and his parents. It is a report with a particular focus. If I include R, then others would have to be included to be fair. This is just not necessary. She should not be included. [47] The third point is parenting time. Ms. Beatty has not seen her son A and he has not seen her, nor has he seen R, for many months due to the actions of Mr. Schatz, though the parties share joint custody of him. This question of when A sees his mother is not his decision at this point. It is not about where he will ultimately live. In my opinion, it is in his best interests to have significant parenting time with his mother and with R present as much as possible. [48] Therefore, he will have unsupervised parenting time with his mother and with R as follows: o Thursday, April 2, 2009 from 4:00 p.m. until 7:30 p.m. o Saturday, April 4, at 10:00 a.m. until Sunday, April 5, 2009 at 6:00 p.m. o Wednesday, April 8 and Thursday, April 9 from 4:00 p.m. until 7:30 p.m. o Over the long weekend he will have parenting time from Friday, April 15 at noon until Sunday, April 17 at 6:00 p.m. o After that, if necessary, he will have parenting time on Wednesdays and Thursdays from 4:00 p.m. until 7:30 p.m. and each weekend from Saturday at 10:00 a.m. until Sunday at 6:00 p.m. [49] Mr. Schatz, I want to say something to you. It is your obligation as A's father to not just tell him that he has to do this because I said so, but to encourage him in a positive way to do so. I expect no less. You are helpfully nodding in the affirmative. [50] Mr. Vlug, I expect that you will explain to Mr. Schatz that doing anything to discourage this parenting time will likely not stand Mr. Schatz in good stead in these proceedings. [51] With respect to the final point, what A should be told, I direct that he be told that I want to hear what he thinks about this and that I have adjourned the case so that he has a chance to do that. Then, of course, you will tell him that I have decided that it is important that he see his mother in the way that I have described. "Martinson J."