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D.S. v. V.W.

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Court/Judicial body: Supreme Court of Canada
Date: May 2, 1996 CRC
Provisions: Article 3: Best interests of the child
Other international provisions:Hague Convention on the Civil Aspects of International Child Abduction 
Domestic provisions: Act respecting the civil aspects of international and interprovincial child abduction (the “Act,” which implements and adopts the Convention in Quebec, Canada) Civil Code of Quebec (Various sections providing (i) that Quebec courts have jurisdiction to rule on child custody once the child is domiciled, resident or physically present in Quebec or the person who has control of the child resides in Quebec and (ii) that the best interests of the child are to be considered in matters pertaining to the child, including custody)

Case summary

Background: A father was given custody of a child with the mother having supervised access rights. The father then took the child and moved from the United States to Quebec, Canada without consulting or notifying the mother. The mother sued to have the child returned to the United States and the father sued to have custody established in Canada.

Issue and resolution: International child custody and access. The child was ordered to be returned to the United States as that was in the best interests of the child.

Court reasoning: Although the parties agreed that the Act respecting the civil aspects of international and interprovincial child abduction – a law implementing the Hague Convention on the Civil Aspects of International Child Abduction – governed the dispute, the court found that this law only applied to situations where a child had been removed to another jurisdiction in breach of rights of custody, not rights of access only. Therefore, since the father already had custody of the child when he took the child to Canada, the Act and Convention did not apply. However, the Court also found that because the child was domiciled in Quebec, the Canadian courts could review the case nonetheless and ordered the child returned to the United States as that was in the best interests of the child. In reaching its decision, the Court relied on the Convention on the Rights of the Child as international support for the principle that the best interests of the child should be a central consideration in reaching decisions that concern the child.

Excerpt citing CRC and other relevant human rights 21 The fundamental objective of the Convention, as stated in its preamble, is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”. According to Articles 3 and 12 of the Convention, the mandatory return procedure provided for in the Convention is set in motion only where a child has been removed or retained in breach of rights of custody. As for rights of access, Article 21 provides that the administrative organizations of the Central Authorities designated by the states parties to the Convention are responsible for securing respect therefor. For example, a parent prevented from exercising his or her rights of access due to the removal of a child, to Quebec or a designated state within the meaning of the Act, has a remedy of securing the organization or protection of those rights in accordance with the procedure laid down in ss. 31 and 32 of the Act. In “The Hague Convention on International Child Abduction” (1981), 30 Int’l & Comp. L.Q. 537, at p. 555, A. E. Anton explained the rationale for the difference in the protection accorded to rights of custody and rights of access as follows: It was felt not only that mandatory rules in the fluid field of access rights would be difficult to devise but, perhaps more importantly, that the effective exercise of access rights depends in the long run more upon the goodwill, or at least the restraint, of the parties than upon the existence of formal rules. 22 Thus, the Convention makes a clear distinction between rights of access, which “include the right to take a child for a limited period of time to a place other than the child’s habitual residence”, and custody rights, which are defined as “includ[ing] rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”. … 31 According to s. 3 of the Act, quoted earlier — which reproduces almost verbatim Article 3 of the Convention as interpreted in Thomson — the removal or retention of a child is wrongful “where it is in breach of rights of custody”. In light of the principle stated in Thomson as to the object of the mandatory return procedure established by the Convention, it is clear that s. 3 of the Act, in initiating that return procedure, is concerned exclusively with the protection of rights of custody and not with compliance with rights of access. … 36

The automatic return procedure implemented by the Act is ultimately intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. To that end, the Act favours the restoration of the status quo as soon as possible after the removal of the child by enabling one party to force the other to submit to the jurisdiction of the court of the child’s habitual place of residence for the purpose of arguing the merits of any custody issue. The Act, like the Convention, presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately repatriating them to their original jurisdiction, where the merits of custody should have been determined before their removal. Once that determination has been made, the Convention and the Act give full effect thereto by protecting custody rights through the mandatory return process. See generally R. Schuz, “The Hague Child Abduction Convention: Family Law and Private International Law” (1995), 44 Int’l & Comp. L.Q. 771, at pp. 775-76; Farquhar, supra, at p. 10; Anton, supra, at pp. 542-43. … 75 As we know, the interests of the child are central to any decision concerning the child. This is the principle underlying the Convention and the Act. It is also the criterion adopted by the Civil Code of Québec, the courts and authors. 76 The primacy of the child’s interests is recognized by the Convention’s fundamental objective, which is confirmed in the Act and set out in the preamble to the Convention: “the interests of children are of paramount importance in matters relating to their custody”. This objective is in keeping with the universal recognition that the interests of the child must prevail, as stated in a number of international documents in addition to the Convention, such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, Article 3 of which provides that “[i]n all actions concerning children . . . . . the best interests of the child shall be a primary consideration”.

Notes: Even though the court found that the Act and the Convention were not applicable to the case at hand, the court’s analysis that the Act and the Convention deal with the removal of a child in breach of custody rights, rather than access rights, seems to be what this case is most known and cited for.

CRIN comments: CRIN believes this case is consistent with the CRC in that, as recognised by the Court, Article 3 of the Convention requires that the best interests of the child always be a primary consideration in reaching any decision concerning children.

Citation: [1996] 2 S.C.R. 108

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