Thomson v. Thomson Supreme Court of Canada 1994

1
Thomson v. Thomson Supreme Court of Canada 1994

• interaction of private international law and
  public international law
• treaty interpretation
• interaction of international law and domestic
  statute
• nature of the distinction between majority and
  minority opinions

2
Facts to pin down

• what did the first order of the Scottish court
  say?
• what is a chasing order?
• why is it important that the European Convention
  differs?

3
Trial level decision

• application under both the Convention and the
  Child Custody Enforcement Act of Manitoba
• orders from foreign jurisdictions are to be
  enforced
• child has real and substantial connection with
  Scotland
• main issue is exceptions grave risk or
  serious harm
• removal wrongful under the Convention
• child ordered returned to Scotland with interim
  custody order (4 months) to the mother

4
Manitoba Court of Appeal

• child is a resident of Scotland not Manitoba
• wrongly retained in Manitoba following the
  custody order (therefore removal does not matter)
• Act to be interpreted to conform with the
  Convention
• harm/risk could not be simply that of return
• child should be returned forthwith
• Helper J.A. in dissent interim custody to the
  mother, stay of the application until
  undertaking, custody application in Scotland to
  commence within 2 months

5
Objectives of the Hague Convention on Civil
Aspects of International Child Abduction

• to return the status quo ante
• to reflect the view that concurrent exercise of
  custody jurisdiction is not in the best interests
  of a child
• enforcement of custody rights
• haven state not to investigate custody
• access rights not subject to mandatory provisions
• not about all child abduction, only child
  abduction in violation of a custody right

6
SCC ruling (LaForest J.)

• appeal dismissed ( return forthwith)
• Convention and Manitoba Act cannot be read
  together, Convention takes over ( more next
  class)
• thus interim custody (s.6) is not possible
• in interim custody with non-removal provision, a
  part of custody right remains with the court (3
  theories)
• removal was wrongful (thus retention not nec)
• custody order to father not enough to make
  retention wrongful
• disputes about mothers knowledge and childs
  residence are irrelevant
• chasing orders and judicial comity

7
Minority opinion Justice LH-D

• explicitly agrees regarding interpretation of
  Convention and its application to these facts
• agrees regarding distinction between permanent
  and temporary orders
• finds, hwr, Manitoba courts do have jurisdiction
  to make temporary orders
• childs best interests central to both documents
• Helper J.A.s order nec because of chasing order,
  undertaking would not have been sufficient
• problem with enforcing undertaking
• role of federalism in the analysis