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Thomson v. Thomson Supreme Court of Canada 1994

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. Facts to pin down.

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Thomson v. Thomson Supreme Court of Canada 1994

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  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 mother’s knowledge and child’s residence are irrelevant • chasing orders and judicial comity

  7. Minority opinion Justice L’H-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 • child’s 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

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