In the case of Thomson v. Thomson [1994] 3 SCR 551, 17 year old Amanda Thomson married Paul in 1991 and has a child in 1992. Mom, Dad and child lived together for 6 months. They separated. Both parties went to the Scottish court for custody. The Scottish court granted interim custody to Mom.
Great! says Mom, ‘I have custody, I can go to Canada (where Mom’s parents lived)!’
Dad launched a ‘request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction’ (Thomson para 9).
The narrowest ratio of the supreme court of Canada is that in this particular case, because the ultimate determination of custody was pending in the UK court, it was the UK court, not the Mom or the Dad who had Hague ‘custody’ rights to the child. Laforest stated:
63 Sir Stephen Brown P. of the English Court of Appeal held, at p. 149:
In my view this was the plainest example of an unlawful removal. The mother herself appears to have thought so, for she later stated that she regretted having taken that step at that time. It is suggested that she did not appreciate the legal position, although she was in receipt of legal advice at the time. It seems to me that the court itself had a right of custody at this time in the sense that it had the right to determine the child’s place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence
64 I am fully in agreement with this statement. It seems to me that when a court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child’s place of residence.
As with every SCC case, there are wider readings which used to be called obiter. This comment is about one small aspect of obiter found in paragraph 35. Laforest J. (one of those judges, who like a good wine, improves with age), describes the background to the Hague Convention.
Canada, the self-described ‘helpful fixer’ on the international stage, was doing the Canadian thing in being the proposer of an international convention to address the ‘crisis’ of international child abduction.
Usually when Canada goes about its international agenda, no Canadian is injured in the process. Can we say that here?
Laforest cites various articles on the apparent numbers of international child abductions and after citing a few trivially small numbers, he says:
[35]… Though, as Anton has pointed out, these numbers were relatively small, the risk of harm to the child and the certainty of distress to the parents made it imperative that governments coordinate their efforts to prevent this evil. At all events, the numbers showed signs of increasing. …in 1986 there were 276 reported cases of parental child abduction in the United States;
Canada’s international agreeableness is great fun until we appreciate that, in many cases, provincial superior courts operating under strictly provincial legislation are in the business of expelling Canadian citizens with barely a hint of due process because Canada thinks the first priority is to ‘return’ children, citizen or not, to wherever they came from.
The same people who applaud Canada’s internationalist leanings are usually the people applauding the Charter. The same Charter which contains the section 6 right of a Canadian citizen to remain in Canada.
Since the inception of the Charter, there has been thirty-years-war over the rights of immigrants under the Charter and the right not to be extradited because of the Charter.
Curiously, with regard to Canadian citizen children, not only has there been hardly a critical whimper, McLaughlin C.J. has sounded positively hostile to a Charter attack on the citizen-expelling business where it involves the Hague Convention on Civil Aspects of Child Abduction. (Office of the Children’s Lawyer v. Balev [2018] 1 SCR 398 para 35. Upholding Canada’s sacred international commitments etc.
What role do numbers play under section 1?
When and if there is a Charter attack on this judicial conduct, section 1 will call for at least a simple assessment of numbers of this alleged crisis of international abductions. Laforest gave us a number: 276 reported cases in the United States in 1986. That’s a measure of the ‘crisis’ calling for the suppression of the Charter right to remain of a Canadian citizen child?
We are all aware that the supreme court of Canada gets to deem something a crisis whether it is or not. The Canadian crisis mentality, among the judiciary, surrounding the idea of returning children to ostensibly ‘habitual’ residences, is not supported by the Hague numbers.
In 1999 Canada received 36 ‘return’ applications. 11 of those from the United States and five from the UK. Canada made 49 of its own applications for return for a grand crisis total of 85 children. www.hcch.net/en/publications-and-studies/details
In 2015 Canada received 43 return applications and made 35 return applications for a grand crisis total of 78 children. https://assets.hcch.net/docs/6ca61ff3-5ca6-4fbe-a79a-cb6e7485f4b0.pdf
In 2015 there was a global total of 2270 return applications. https://assets.hcch.net/docs/d0b285f1-5f59-41a6-ad83-8b5cf7a784ce.pdf (para 12)
In 1999 there were 954 global return applications coming from the 57 contracting states. https://assets.hcch.net/upload/abd2001pd3e.pdf (page 4)
How are these numbers to be assessed in a section 1 analysis where numbers matter? In everyday legislation, Ontario can pretend to crisis. When it comes to pressing and substantial concern, Ontario must produce numbers demonstrating actual crisis, and those numbers have to justify taking away the right to remain of a citizen. Those numbers have to be of such magnitude that they justify the setting aside of ordinary due process such as cross-examination. Finally and this is the part where the above numbers fail – the expelling of the Canadian citizen has to be shown to be rationally connected to the goal of reducing ‘abductions’. This is where simple statistical assessment does not show a crisis pre-Hague and does not show a diminution of ‘abductions’ post-Hague. In other words, the statistics do not support that the Hague convention reduces ‘abductions’.
rational connection means ‘causality’
There is good reason why judges always stay vague when it comes to quantifying justification. Quantification is an actual science and no one wants to have to justify their globalist motivations with statistics. Clive Granger won a nobel prize in economics for his groundbreaking work in causality. Before Granger, economists were puttering around like judges deeming ‘rational connection’ without proving it.
These numbers certainly do not announce ‘crisis’ measured against global population. They do not suggest ‘crisis’ when compared to the 30,000 custody and access applications made annually in Canada and processed in the ordinary course.
Yet to address this ginned-up abduction crisis, Canadian courts close their eyes to the obvious breach of section 6 of the Charter, to say nothing of the novelty of provinces being in the deportation business.
The point of this comment is not to attack child-return generally. The point is to emphasize that the most critical constitutional right – the right to remain of a Canadian citizen – is utterly dismissed in the Canadian judicial mind when expelling children from Canada without even the pretense of treaty-cover.
