2007 BCSC 1825 Mathews v. Mathews

Before: The Honourable Mr. Justice Barrow

Reasons for Judgment

Counsel for the Petitioner:	M.E. Shaw, Q.C.
Counsel for the Respondent:	R.J. Smith
Date and Place of Hearing:	October 12, 2007
	Kelowna, B.C.

Overview

[1] The petitioner, Luke Mathews, applies under the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can.T.S. 1983, No. 35 (the “Convention”) for a declaration that his two children have been wrongfully removed or are being wrongfully retained in this jurisdiction and for an order that they be delivered to him in Australia. In addition, he seeks to have an interim without notice order pronounced in a family law action launched by the respondent, Sheena Mathews, in this court set aside and those proceedings stayed.

[2] The petitioner and the respondent were married on April 27, 2003, in Kelowna, British Columbia. Their first child, Dex Paul Rutko Mathews, was born two days later. He is now four years old. The couple moved to Australia, Mr. Mathews’ native country, in August 2003. Their second child, Kodi Lin Mathews, was born there on February 8, 2005. He is now two years old.

[3] On February 20, 2007, Ms. Mathews and the two children returned to Canada. Mr. Mathews remained behind in Australia to pack up the family’s belongings and save money for what he thought was to be a temporary relocation to this country. He arrived in Kelowna on April 12, 2007. In anticipation of the move to Canada, Mr. Mathews had applied for permanent residence status. Ms. Mathews sponsored his application. The day after his arrival she withdrew her sponsorship, and as a result he was required to leave and he did so on May 9, 2007. Later that month, he began assembling the information and evidence necessary to make this application. On August 3, 2007, he filed the petition which is now before the court.

[4] Three days after Mr. Mathews’ departure and specifically on May 15, 2007, Ms. Mathews filed a writ and statement of claim in this court. The next day she applied, without notice to Mr. Mathews, for interim custody of the children. Her application was successful and in an order granting her interim custody was pronounced (Action No. E75401). It is that order which Mr. Mathews seeks to have set aside.

[5] The central issue in this matter surrounds the circumstances under which Mr. Mathews agreed to allow his children to leave Australia and relocate to this country. It is his position that when he gave his consent to the move, he did so under a fundamental misapprehension as to Ms. Mathews’ intentions, and if that is so then his consent is not valid. Ms. Mathews takes the opposite position. She maintains that Mr. Mathews knew her intentions at all times and that his consent was validly given.

[6] In what follows, I will set out the legal principals that apply to this proceeding and then turn to the more troublesome factual issue.

The Law

[7] The Hague Convention, to which is Canada is a contracting state, has the force of law in the province of British Columbia by operation of Part IV of the Family Relations Act, R.S.B.C. 1996, c. 128.

[8] The objectives of the Convention are set out in Article I. They are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States”.

[9] The material parts of Article 12 of the Convention provide that if a child has been wrongfully removed or retained then the court “shall order the return of the child forthwith”. Article 3(a) defines wrongful removal or retention. It provides that removal or retention is wrongful where:

(a) it is in breach of rights of custody attributed to a person…under the law of the State in which the child was habitually resident immediately before the removal or retention, and

(b) at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

[10] There are two exceptions to the mandatory order required under Article 12 and they are found in Article 13. It provides in part as follows:

Notwithstanding the provisions of the preceding Article, the judicial…authority of the requested State is not bound to order the return of the child if the person…which opposes its return establishes that-

(a) the person…having the care of…the child…consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[11] The analysis of an application for relief under the Convention must begin with a determination of whether what is being considered is a wrongful detention or a wrongful removal. This is so because the notion of “habitual residence” is to be determined as of the time immediately before the wrongful act. Article 3 provides that removal of a child is wrongful where to do so would amount to a breach of the custody rights of a parent as determined by the law of the state in which the child was habitually resident immediately before the removal or retention. Once that is resolved the next issue is to determine the children’s habitual residence. The concept of “habitual residence” is not defined in the Convention. In Adderson v. Adderson (1987), 7 R.F.L. (3d) 185 (Alta. C.A.), Laycraft C.J.A. said this about it at para. 18:

…the term "habitual residence" refers to the quality of residence. Duration may be a factor depending on the circumstances. It requires an animus less than that required for domicile; it is a mid point between domicile and residence, importing somewhat more durable ties than the latter term. In my view it is not desirable, indeed it is not possible, to enter into any game of numbers on the duration required. All of the factors showing greater or less present intention of permanence must be weighed.

[12] In Jackson v. Graczyk, [2007] O.J. No. 2035, 2007 ONCA 388, at para. 27, Laskin J.A. approved four principles distilled from Korutowska-Wooff v. Wooff (2004), 242 D.L.R. (4th) 385 (Ont.C.A.). They are:

1. The question of habitual residence is a question of fact to be decided on all the circumstances;

2. A person's habitual residence is the place where that person resides for an appreciable period of time with a "settled intention" to do so;

3. A "settled intention" is an intention to stay in a place, temporarily or permanently, for a particular purpose, such as employment or family; and

4. A child's habitual residence is tied to that of the child's custodial parent[s].

[13] Once the issue of habitual residence has been resolved the next issue is whether the removal to or retention in the contracting state (in this case Canada) was in violation of the rights of custody of the applying parent (in this case Mr. Mathews). I note there is potential for confusion in the analysis required by the Convention at this juncture. Removal is wrongful only if it is in “breach of rights of custody” of the parent applying. If the parent applying has consented to the removal of the children then it is difficult to appreciate how their removal would be in breach of that parent’s custody rights and yet, Article 13, which applies only if it has been established that the children were wrongfully removed or retained, provides that an order directing the return of the children need not be made if the parent opposing the order establishes that the other parent consented to or acquiesced in the children’s removal. This may not be just an idle or picayune point because it affects the issue of onus. If the determination of consent is properly addressed when considering whether the removal or retention is wrongful, then the onus falls on the applicant to disprove it. If the determination is made under Article 13 then the onus of establishing it falls on the person opposing the order. In spite of this possible ambiguity, I consider that the appropriate place for determining the issue of consent or acquiescence is under Article 13 because by the terms of that article that it must be addressed there and the drafter’s of the Convention would not have intended that the same issue be examined twice in the context of a single application. It follows, therefore, that the onus is on Ms. Mathews to establish that Mr. Mathews either consented to, or subsequently acquiesced in, the children’s removal or retention.

[14] The question of consent or acquiescence was considered by Osborne A.C.J.O. in Katsigiannis v. Kottick-Katsigiannis (2001), 203 D.L.R. (4th) 386 (Ont.C.A.). After reviewing some Commonwealth, French and American authorities on the point, he concluded at para. 49 that in order to engage Article 13(a) “there must be clear and cogent evidence of unequivocal consent or acquiescence”.

[15] The next issue is whether, and if so under what circumstances, outward or ostensible consent may be vitiated or held to be invalid. It must be open for a party who has given outward consent to establish that the consent was not valid. If it were otherwise the objects of the Convention could be undermined. If it is alleged that there are circumstances that would vitiate a consent outwardly given, it is for the party making that claim to prove it on a civil standard. It is not necessary to resolve the matter at hand to define all the possible grounds on which consent might be vitiated. It is enough to observe that deceit, fraud or a fundamental misrepresentation in relation to a material aspect of the consent are among them. The common element in all of these is dishonesty. Not any dishonesty will be sufficient to vitiate a consent; rather, it must be dishonesty going to the root of the consent.

[16] With these considerations in mind, I turn to the factual dispute upon which this application hinges.

Position of the Parties

[17] Ms. Mathews argues that the children’s habitual residence is Canada. She points to evidence that the parties had discussed moving to Canada some time ago. In June of 2006, they agreed that they would move to Canada for a period of three years, and it was in furtherance of that agreement or something along those lines that Ms. Mathews came to Kelowna in February 2007. They had packed their belongings, sold some of those they did not wish to take, disposed of the family dog and as of Ms. Mathews’ departure with the children all connection with Australia, at least for the foreseeable future ended. In these circumstances, Ms. Mathews argues that whether Canada became the children’s habitual residence or not, Australia had ceased to enjoy that status. If this is so that is an end to Mr. Mathews’ application.

[18] In the alternative, and assuming that Australia was the children’s habitual residence immediately prior to their removal to or retention in this country, Ms. Mathews argues that neither their removal nor their retention was wrongful. She argues that Mr. Mathews knew that their marriage was in a precarious state and had been for some time prior to February 2007. She argues that she had separated from him prior to her departure and that she intended to live separate from him when they reached Canada. Although he knew this, he was convinced that he could win her back and was prepared to take the risk inherent in that course of action. As it turned out, he was unsuccessful and when he realized that, he simply changed his mind and brought this petition. The fact remains, however, according to Ms. Mathews, that he agreed to the removal of the children to this country with a full appreciation of the possible outcomes which that might entail. If this is so then neither the removal nor the retention is or can be considered wrongful.

[19] Mr. Mathews argues that the children’s habitual residence was and is Australia. He argues that even though they planned to come to Canada and stay for several years, it was always their intention to return to Australia so that the children could go to school there. In these circumstances, Australia remained their habitual residence. He argues that he consented to the children coming to Canada in the belief that they would continue to live as a family once here. As to Ms. Mathews’ argument, he says that it defies common sense for him or anyone in his position to agree to move halfway around the world, to a country where he has no friends and no family, and where even his ability to work may be limited, on the basis that he would be living separate and apart from his wife and children but in the hope that they might be able to salvage their marriage. He argues that he did not agree to such an arrangement. He argues that Ms. Mathews led him to believe that they would continue to live together as a family once in Canada but that unknown to him, she had no intention of doing that. In support of this argument, he points to a letter contained on a birthday card sent to Ms. Mathews by her friend, Ms. Sleeman, shortly after Ms. Mathews’ departure from Australia and certain entries in a journal Ms. Mathews kept and which Mr. Mathews found and copied. Mr. Mathews argues that these documents reveal Ms. Mathews’ state of mind and confirm that she had not shared her intentions with him.

[20] As to these latter items, Ms. Mathews argues that they should not be admitted into evidence because they are private communications which Mr. Mathews obtained by searching through her belongings. If they are admitted, she argues that on close reading, they do not support the contention that she deceived Mr. Mathews.

[21] I pause here to observe that no less than 33 affidavits have been filed in this proceeding. Ms. Mathews has filed three affidavits; her stepfather, Paul Peterson; her mother, Linda Coffin; and her sister, Ebony Rutko, have each filed two. Her father, Arnold Rutko; her aunt, Susan Gustafson; and her aunt-in-law, Pamela King, have each filed one. In addition, her friends, Hollie-Berri Sleeman, Rebecca Michel, Sandra Farmer, and Cecily Thomson, have filed affidavits. Mr. Mathews’ first affidavit in this matter was sworn on May 29, 2007. He has sworn individual affidavits responding to the affidavits Ms. Mathews, Ms. Farmer, Ms. Thomson, Ms. Sleeman, Ms. Coffin, Mr. Rutko, Ms. Michel, and Mr. and Mr. Peterson. In addition, his sister, Emma Mathews, has sworn two affidavits and his father, Paul Mathews, has sworn one. His friend, Simon Cole, has sworn two and Mr. Cole’s partner, Jennifer Doyle, has sworn one. Mr. Mathews’ friend, Diane Saldern, has also sworn an affidavit.

[22] Not all of this evidence touches on the issue of what Mr. Mathews knew or did not know as to Ms. Mathews’ intentions, but to the extent it does, it is largely in conflict. In terms of resolving the conflict, Ms. Mathews argues that it is clear the parties’ marriage was in difficulty long before they left Australia and that those closest to them knew that. The affidavits which leave the impression of marital bliss, and for the most part those are affidavits filed on behalf of Mr. Mathews, are from people who were not close to the parties and thus their affidavits should be discounted. Neither party has asked to cross examine the deponents of affidavits filed by the other. I am satisfied for the reasons that follow that I can justly resolve the factual issue without the need for cross examination.

Analysis

[23] I will deal first with the matters that are not in dispute and then with the issue of habitual residence. I will then turn to the evidentiary point before addressing the primary issue, namely, the circumstances under which the parties moved to Canada.

[24] Ms. Bush, a barrister practising in the Australian capital territory with the international family law section of the Attorney General’s department, which is the Australian central authority for purposes of the Convention, has filed an affidavit setting out the law relating to custody of children in that jurisdiction. She has deposed that under that law, parents of children retain joint parental responsibility until such a time a court orders otherwise. It is common ground that, as of the date Ms. Mathews and the children left Australia, no proceedings had been commenced in that country. I am satisfied that Mr. Mathews had “rights of custody” in relation to the children at the time they were removed from Australia and that he was actually exercising those rights, or would have been but for the children’s removal.

[25] There is no dispute but that the children are under the age of 16 and that they have been in this country less than a year. Further, there is no suggestion the exception in Article 13(b) of the Convention applies, and I am satisfied that it does not.

[26] As earlier noted, the determination of habitual residence is to be made at the point “immediately before the removal or retention” (Article 3(a)). It is the removal of the children that is the material time in this case. It is Mr. Mathews’ evidence that he would not have allowed the children to leave Australia at all if he knew Ms. Mathews’ true intentions. It is at the point of their departure that the issue of the wrongfulness of the act is to be determined.

[27] There can be no question but that, as of the day they left, the children’s habitual residence was Australia. A different conclusion might obtain if the issue is to be resolved after the children were in this country with Mr. Mathews’ consent and he simply changed his mind. That issue does not arise, however, given the conclusions I have reached regarding the validity of this consent.

a) The Evidentiary Issue

[28] Ms. Mathews opposes the admission of two documents. The first is a series of entries in her diary or journal; the second is a letter written on a birthday card sent to her friend, Ms. Sleeman. I will deal first with how these documents came into Mr. Mathews’ possession before turning to the law.

[29] When Mr. Mathews first arrived in British Columbia, he moved into Ms. Mathews’ parents’ house where Ms. Mathews was staying with the children. Although the parties had separate bedrooms the arrangement soon proved intolerable and Mr. Mathews left. Prior to leaving, however, he found and read Ms. Mathews’ diary. He deposed in his first affidavit that he “saw her diary and read it in an attempt to understand what was happening”. As to the card from Ms. Sleeman, Mr. Mathews deposed in the same affidavit that it was in the hallway of the home and when he saw it he read it. He took pictures of all the documents using his mobile phone.

[30] According to Ms. Mathews, she left her diary and the card in a locked box in which she kept her personal and private papers. The locked box was in her bedroom. She has deposed that although Mr. Mathews was living under the same roof he was not allowed in her bedroom and he knew that.

[31] Mr. Mathews account of how he came to see the greeting card has evolved. After it became clear that the admissibility of this evidence was being contested he swore a further affidavit. In it he deposed that he first saw the card when his daughter “walked out into the lounge room chewing paper. I took it off her, and then read the card.” He then “went to put the card back”, and when he did, he saw Ms. Mathews’ diary on the floor of her bedroom “in plain view”. As to his understanding of whether he was entitled to go into her room, he has deposed:

Sheena left her door to her room open. She did not tell me not to enter the room. Many of the children’s things were in her room and, therefore, I had to go into her room in order to properly care for the children.

[32] I do not accept Mr. Mathews’ evidence on this point. I have no doubt, given the situation that existed in the house at the time, that even if no one told Mr. Mathews he was not to go into the bedroom of his estranged wife, he knew he was not to do that. Whether he picked the lock of the box in which Ms. Mathews believes she kept these items, I cannot say. I am satisfied however that his actions amount to a violation of her privacy.

[33] The authorities in this province on the admissibility of illegally obtained evidence are not entirely consistent. There are four of them: Seddon v. Seddon, [1994] B.C.J. No. 1729 (S.C.) [Seddon]; B. (A.D.) v. B. (E.), [1997] B.C.J. No. 227 (S.C.) [B. v. B.]; Sweeton v. Sweeton, [1996] B.C.J. No. 3138 (B.C. Master) [Sweeton]; and Rawlek v. Rawlek, [2003] B.C.J. No. 2231 (S.C.) [Rawlek]. Of these, in Seddon and Rawlek the evidence excluded. In the others it was admitted.

[34] In Seddon, Thackray J. (as he then was), in the context of a custody dispute, was faced with some 20 hours of surreptitiously recorded conversations made by the father of conversations between the parties or between the mother and the children. The father had placed voice activated recording devices around the family home some time prior to the parties’ separation but when their separation was inevitable and immanent. Thackray J. refused to admit the evidence. He observed that the practice of getting evidence by secret recording was “odious” and should not be encouraged by permitting those who engage in it to benefit from it. He noted that by taping the private conversations of mother without her consent, the father had likely committed a criminal offence. In addition, there were some unspecified technical issues with the recordings. Further, Thackray J. also appears to have concluded that the recordings were made in violation of the mother’s Charter rights, and that too was a basis for excluding them. Finally, he concluded the recordings were of limited or dubious relevance in the context of that case.

[35] In B. v. B., Grist J. dealt with an interim custody application in which it was alleged that the mother was alienating the children. During a summer access visit with their father, the children telephoned their mother almost daily. The father tape recorded these conversations without telling the mother. Grist J. admitted the evidence concluding at para. 12:

…the law is clear that if the information is relevant, the identity of the parties known, and the recording trustworthy, the evidence by way of taped conversations should be received.

Seddon was not referred to Grist J.’s attention.

[36] Sweeton involved an application to vary interim custody. The mother sought to introduce a tape recording of a single telephone conversation between the father and the child. The call was made on the evening of the first day of the application and following an admonition by the master that the parties not discuss the issues with the child. In the telephone conversation, the father was discussing the issues and attempting to influence the child’s views. Master Joyce (as he then was) admitted the evidence. He considered but distinguished Seddon on two grounds: first, the criminal law relating to the admissibility of intercepted communications had changed since Seddon was decided; and second, to the extent that Seddon rests on the proposition that the evidence was obtained in breach of the Charter it was flawed. Ultimately, Master Joyce concluded that while he had an “extremely limited” discretion to exclude evidence, the circumstances necessary to engage that discretion were not met on the facts and thus he admitted the evidence. In doing so, he noted that he was obliged to consider the best interests of the child and that militated in favour of the admission of the evidence.

[37] Finally, in Rawlek, an order had been made for a report under s. 15 of the Family Relations Act. Over a period of three and a half years, the mother had secretly taped the father’s conversations with his children as well as some between her and the father. She sought an order allowing her to give these recordings to the author of the s. 15 report. Although Williamson J. noted that he was not dealing with admissibility but rather only with whether the evidence could be shown to the court appointed expert, he reviewed the authorities just mentioned. He concluded that there is a three-pronged test to be applied in considering whether to admit evidence of this sort: “relevance, known identification and trustworthiness” (at para. 14). He also considered the question of fairness and the affect on allowing evidence of this kind to be used on the reputation of the administration of justice. He dismissed the application, concluding as follows (at paras. 21 to 23):

Then there is the question of fairness here. Should one party benefit from her surreptitious sneaky taping of someone to introduce a huge body of evidence when that body of evidence with respect to the thousands of conversations she would have had with the children over those years is unavailable.

I also ask myself whether the probative value of the tapes and transcripts outweighs the prejudicial effect upon the defendant, but also upon the administration of justice.

In the end, I conclude that what we have here are mountains of surreptitiously and illegally obtained evidence of questionable trustworthiness. Its probative value is questionable.

[38] Both Williamson J. and Master Joyce commented on the reference to the Charter in Seddon. Both observe that the Charter does not apply in disputes between private litigants and in particular to evidence acquired by them without governmental assistance. This is largely due to s. 32(1) of the Charter about which McLachlin J. said in M.(A). v. Ryan (1997), 143 D.L.R. (4th) 1 at para. 22:

…it is important to bear in mind the distinction drawn by this Court between actually applying the Charter to the common law, on the one hand, and ensuring that the common law reflects Charter values, on the other…

...

The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.

I am not asked to determine whether the common law rules regarding the admissibility of evidence of the kind here in issue is or is not inconsistent with Charter values. Even if I were persuaded they were inconsistent with Charter values, I would not exclude the evidence.

[39] Before leaving the law, I will briefly refer to the Ontario cases cited by Mr. Smith, counsel for Ms. Mathews, in his written submissions. There are three of them: Reddick v. Reddick, [1997] O.J. No. 2497 (C.J.) [Reddick]; Fattali v. Fattali, [1996] O.J. No. 1207 (C.J.) [Fattali]; and F. v. C., [2000] O.J. No. 3978 (C.J.) [F. v. C.]. In Fattali, the father had secretly recorded an interview with his child’s pediatrician with a view to supporting his contention that the child was being improperly medicated. He wished to tender that evidence in an interim custody application. Vogelsang J. summarily refused his application observing in the process “such forays into the gathering of potential evidence are to be discouraged in the strongest terms” (at para. 5).

[40] Reddick is ruling made during a custody trial. The father recorded four conversations between the mother and the children which, he argued supported the conclusion that she was alienating the children from him. Bell J. considered and distinguished Fattali, because of the other interests at play there, and ruled the recordings admissible. At para. 24, he expressed the reasons for his conclusion in the following terms:

After reviewing all of the evidence on the voir dire, I conclude that the evidence of tape-recorded conversations between the mother and the children which is sought to be introduced is relevant, reliable and probative. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children.

[41] F. v. C. is similar to Fattali in that the evidence sought to be admitted consisted of secretly recorded interviews between the children and members of a medical team known as the Child Advocacy Assessment Program. The children had been referred to this program by their family doctor to investigate possible abuse by their father. The father wished to call a member of the team, have him declared hostile and then cross examine him using the secretly recorded tapes. Steinburg J. refused the father’s application noting that to permit such tactics, in addition to the other mischief that it might work, would tend to discourage those in the helping professions from becoming involved in family disputes where their help is often needed.

[42] In summary, the Ontario experience is similar to that in this province. In the only case to which I have been referred involving a recording of a party or their children, as opposed to recordings involving third parties such as doctors, the evidence was admitted.

[43] From the foregoing, it is clear there is a limited discretion to exclude relevant evidence in this context. The judicial exercise of that discretion involves a balancing of competing interests which can be usefully viewed as assessing the probative value of the evidence as against its prejudicial effect. It does not involve the application of the Charter per se.

[44] I will deal first with the probative value of the evidence. In both Seddon and Rawlek, the court expressed concern that a party secretly recording a conversation might be able to manipulate the evidence so as to cast the other party in an artificial light. To the extent that is so, the probative value of the evidence declines. The evidence at issue here does not give rise to this concern. It is evidence which Mr. Mathews had no role in creating. He simply found it.

[45] Ms. Mathews argues that the diary excerpts are incomplete, undated and lack context and for these reasons have limited probative value. As I understand it, Mr. Mathews took the entire diary and so, for example, entries before and after those which he has produced are not available and they may explain or cast in a different light the excerpts which he has produced. To assess this argument the entries themselves need be considered.

[46] The diary entry for February 26th contains the following: “With Luke, for me it’s over. The possibility of us sharing a friendship is strong. I like him as a friend but I don’t feel that a marriage is what I want out of Luke...” There is another entry undated but obviously written after Ms. Mathews was in Canada but before Mr. Mathews had arrived. It states in part:

…honestly I feel done with my time being Luke’s wife. I don’t know if I should tell him before he gets here or after?

In another undated entry, but one likely written after Ms. Mathews was in Canada, she wrote:

I need legal documentation from Smiley saying I can take myself and the children out of Australia and into Canada upon free will. It could say that I would have to inform him and he would be allowed to join us, as I have no desire to take or keep the kids from him ever. However it is important that the letter points out that we can reside here and upon free will. I need to talk to a family lawyer and ask if that type of document would hold up in court…

“Smiley” is a nick name of Mr. Mathews.

[47] I assume that Mr. Mathews has the diary and has not produced all the entries in it. There is no question but that the entries he has produced are complete and unedited. There is no doubt they were written by Ms. Mathews. Some are dated and those that are not can be dated, to the extent necessary to give them probative value, by their content. I do not consider that Ms. Mathews’ inability to examine the remainder of the diary compromises the probative value of this evidence. First, it is open to her to explain or provide whatever context she wishes to the entries she made. Second, it is difficult to fathom how the entry in which she muses about whether to tell Mr. Mathews she does not wish to be married to him, before or after “he gets here” can be explained. I consider that the diary entries have significant probative value.

[48] As to the letter in the birthday card, Ms. Mathews argues that it is hearsay and comes from a witness who is not available for cross examination. Both of these undermine its probative value. As with the diary entries, to appreciate this argument, the letter itself must be considered.

[49] The letter was written by Ms. Sleeman. It is not dated but it was sent along with a birthday present for Ms. Mathews. Ms. Mathews’ birthday is February 26th. It was sent by Ms. Sleeman after Ms. Mathews had left Australia that much is apparent from her affidavit. It reads in part as follows:

…Be honest with Smiley now, it may not be a great idea to uproot him if you already know its over – that would perhaps be unfair. But that is your choice…

We want you to be happy, we believe in you and are always here for you, always. I have one question: why cant (sic) you tell smiley your decision when you already know it? What are you scared of? We are all scared to be alone. I want you to work it out with Smiley. But I do not have to love or live with him…

[50] Ms. Sleeman has provided an affidavit in support of Ms. Mathews. She acknowledges that she wrote the card and sent it. There is no suggestion that only part of what she wrote has been tendered or that what has been tendered has been edited in any way. She does not suggest that she was mistaken about the assertions of fact contained in it. She simply says it was a private communication.

[51] The card is not hearsay because it is contained in a document given that the maker of the document has, in effect, adopted its contents. The probative value of the evidence rests on the inference that may be drawn from it that Ms. Mathews had told her friend of her intentions but had not told Mr. Mathews. The fact that it is hearsay is not inadmissible in that it amounts to an admission against interest. Further, I am not persuaded that the lack of cross-examination of the maker of the document is a factor militating against admission of the evidence. While strictly speaking, Ms. Mathews has not had an opportunity to cross examine Ms. Sleeman, Ms. Sleeman is her witness. She has filed an affidavit on Ms. Mathews’ behalf. She had the opportunity to address the card, without the immediate concern that she might be cross examined on what she might say, and she has chosen to say nothing about its substance.

[52] The card is relevant and has significant probative value. It was written after Ms. Mathews had determined her marriage was over and after she had left Australia. It is apparent that she had not yet told Mr. Mathews of her intentions. Her actions troubled her friend who gently but wisely pointed out the implications of her actions from Mr. Mathews point of view when she wrote, “it may not be a great idea to uproot him if you already know its over – that would perhaps be unfair.”

[53] I turn next to the issue of prejudice. Prejudice includes prejudice to the party opposing the admission of the evidence, prejudice to the trial process, and prejudice to the reputation of the administration of justice. As to the first aspect of prejudice, it is in many ways the mirror image of the probative value inquiry. To the extent evidence is of uncertain provenance, is incomplete or capable of manipulation, it will operate prejudicially. Given this, I will simply observe that there is no particular prejudice to the admission of the evidence for the reasons already given.

[54] Prejudice to the trial process includes a consideration of the cost to the process of admitting the evidence. In Seddon and Rawlek, the two cases in which the evidence was not admitted, the prejudice to the trial process lay in the shear volume of the evidence (some 20 hours of tape recordings in Seddon and recordings made over a period of three and a half years in Rawlek). Prejudice of that kind is not present here.

[55] The third kind of prejudice is present here. It lays in what Thackray J., in Seddon, called the “odious” practice of secretly intercepting the private communications of another. It is aggravated when doing that is also a criminal offence. This sentiment is endorsed by the judges in all of the cases discussed above. It is a sentiment that I share. It is not, however, as pronounced in the matter at hand as in many other cases. First, the evidence in question was not obtained in a manner that constitutes a criminal offence. The only possible offence is that found in s. 184(1) of the Criminal Code, which makes it an offence to intercept a private communication “by means of any electro-magnetic, acoustic, mechanical or other device”. No device within the meaning of this description was used, and thus while I accept that the letter in the birthday card is a private communication, it was not intercepted in a manner caught by s. 184(1). Assuming that the diary is a “communication” within the meaning of the section, it was intercepted in a similar manner and thus its interception is not an offence under s. 184(1). Second, while Mr. Mathews violated Ms. Mathews’ privacy by going into her bedroom and copying these documents, this was a single act done in the throes of what was from his point of view at least, an inexplicable breakdown of his marriage.

[56] Finally, in assessing prejudice, it is appropriate to consider the prejudice that would arise by excluding the evidence. If, for example, the evidence was highly reliable and showed active physical abuse of a young child, there can be little doubt that excluding it would adversely affect the reputation of the administration of justice. It is in this sense that the observations about the best interests of children were made in Sweeton and Reddick. In both cases, the evidence revealed seriously alienating behavior by a parent and that militated in favour of the admission of the evidence. This is, in my view, another way of expressing the possible prejudice that would inure to the reputation of the administration of justice if the evidence were excluded.

[57] In the present circumstances, the evidence might be interpreted as showing a calculated decision by Ms. Mathews to withhold from Mr. Mathews her decision to leave the marriage. It might be interpreted that she did this in an effort to secure Mr. Mathews consent to the children leaving Australia. If that is so, then to exclude the evidence may result in the objects of the Convention being thwarted by subterfuge. When the prejudice worked by admitting the evidence is pitted against the possible prejudice that excluding it might cause, the result is clear in my view.

[58] I am satisfied the evidence has significant probabitive value which outweighs any prejudice caused by its admission. Further, the prejudice that would inure from its exclusion is significant. In the result I find the evidence admissible.

b) The Consent Issue

[59] As noted, if Mr. Mathews validly consented to the removal of his children the court is not obliged to order their return. While it is for Ms. Mathews to establish consent, there is really no question but that outwardly at least, Mr. Mathews consented. The issue is whether his consent was obtained in a manner that renders it invalid. It is for him to establish that proposition.

[60] There is a substantial quantity of evidence dealing with what happened after Ms. Mathews arrived in Canada. None of that evidence is of much assistance in determining the issue at hand. There is also a great deal of evidence about events in the distant past most of which is highly inflammatory but largely unhelpful. The evidence that is relevant largely comes from the parties themselves and, to a lesser degree, from their friends and family and the impugned evidence. On the basis of the impugned evidence, I am satisfied that Mr. Mathews was deceived by Ms. Mathews as to her intentions upon arriving in Canada. However, because I may be wrong on the issue of the admissibility of that evidence I will review the other evidence.

[61] Ms. Mathews has deposed that her marriage to Mr. Mathews was in trouble long before her departure from Australia. She has deposed that they separated for two months between late 2005 and early 2006. There was an instance of physical violence in mid 2006 which resulted in police being called and a court proceeding launched. That proceeding was eventually dropped by Ms. Mathews because if Mr. Mathews was convicted he would not be able to travel to Canada which would interfere with their plans. She has deposed that Mr. Mathews assaulted her again in December 2006, but again she did not purse the matter because of the effect it would have on their anticipated emigration. She has deposed that on December 26, 2006, she told Mr. Mathews she wanted to separate, and in January, she moved into her boss’s home while her boss was away on holidays for two weeks. Mr. Mathews then began going to counseling with a view to resolving some of the issues in their marriage. She maintains that, in January, she told him that if they went to Canada they would not be going as a couple, but rather they would be living separately although close by one another. Mr. Mathews’ response was, according to Ms. Mathews, that he was prepared to go because he was convinced that he would win her back.

[62] As to the nature of the duration of their proposed stay in Canada, Ms. Mathews’ evidence is not entirely consistent. On the one hand, in this proceeding, she has deposed:

…we did talk about going to Canada for a minimum of 3 years. We also discussed one year, but agreed that that was not enough time. As a result, we never actually concluded or agreed on a set period of time, but focused more on having our family relocated to Canada.

In her affidavit sworn in support of her ex-parte application for custody, she deposed:

The children and I returned to Canada on February 20, 2007, with the intention that we would live permanently in Canada from that time forward, and that the defendant would follow and would also live permanently in Canada.

[63] Ms. Mathews’ step-father, Mr. Peterson, has deposed that Ms. Mathews called him in December 2006 and told him and her mother that she had decided to separate from Mr. Mathews. On New Year’s Eve, Mr. Mathews called him upset that Ms. Mathews had left him. He was crying and told Mr. Peterson he was going to get counseling. There followed a number of calls during which according to Mr. Peterson, a bond or closeness between Mr. Mathews and Ms. Mathews developed. This was welcomed because until then Mr. Mathews had, again according to Mr. Peterson, tried to avoid the Petersons. Mr. Peterson then tried to convince Ms. Mathews to keep an open mind about Mr. Mathews and consider taking him back. She apparently refused. Mr. Peterson has deposed that Mr. Mathews told him that he was ready to move back to Canada with his family “to start a new life as a family”. When Mr. Peterson spoke to Ms. Mathews about this she was not prepared to do this. From his entire affidavit, it is not clear that there was ever a point prior to Ms. Mathews’ departure that Mr. Mathews knew it was a separation that would continue after their arrival in Canada. Ms. Coffin’s affidavit is to the same effect. She described a number of telephone calls, after which she “felt close to [Mr. Mathews] for the first time”. She is clear that the parties were separated and would remain separated on their arrival in Canada, although initially they would live in her house, albeit in separate rooms. Even on her evidence, it is apparent that shortly after Ms. Mathews arrived, Mr. Mathews was either resiling from the arrangement or disagreeing that there ever was an agreement.

[64] Ms. Sleeman’s affidavit is telling for what it does not say. She is the author of the birthday letter to Ms. Mathews. She has deposed that she knew the parties separated in December 2006. This was when Ms. Mathews was living at her boss’s home. I take from her affidavit that Ms. Mathews returned to the family home in Australia although, in spirit, the separation continued. While she says she knew the parties had separated, she never says that Mr. Mathews knew that.

[65] The only documentary evidence, aside from the impugned material, touching on the issue are the forms Ms. Mathews completed on behalf of Mr. Mathews relating to his immigration. They consist of a sponsorship agreement that Ms. Mathews completed on January 9, 2007, and an undated application for permanent residence. The application requires the applicant to identify the category under which they are applying. Ms. Mathews indicated that it was a “family class” application relating to four people. She indicated on the form that they would be living in Kelowna on their arrival. A background declaration relating to Mr. Mathews was also completed by Ms. Mathews on January 31, 2007. In an accompanying document called “additional family information”, Ms. Mathews indicated that they (that is, Mr. Mathews, the children and Ms. Mathews) were all living at the same address in Australia. Finally, and tellingly, she completed a “sponsored spouse questionnaire”. It is not dated but was, I infer, completed near the end of January or the beginning of February 2007. Again, although it relates to Mr. Mathews, Ms. Mathews completed it. She indicated that they were “married and living together” and had been since April 27, 2003, until the “current date”.

[66] There is nothing in these documents that would suggest to anyone that Ms. Mathews considered herself to be separated from Mr. Mathews and that she intended to remain living separate and apart once they arrived in Canada. To the contrary, one would conclude that they were married, living together, and would continue to live together in Kelowna once they arrived here.

[67] The evidence of Ms. Thomson is interesting. She was Ms. Mathews’ employer in Australia. It was in her house that Ms. Mathews lived from December 31, 2006 to January 11, 2007. Sometime after January 11, 2007, she met with the parties. She asked how they were doing to which “they said [they] were organizing their trip to Canada”. In Ms. Mathews’ presence, Mr. Mathews said that they were going to Canada for three years. He apparently then expressed his determination to work things out so that the family would get back together. According to Ms. Thomson, she thought the parties were living separate and apart when she had this encounter with them.

[68] I am satisfied that Mr. Mathews did not realize, when he agreed to allow his children to leave Australia, that it would mean that when he came to Canada he would not be living with them or their mother. First, on Ms. Mathews’ own evidence (para. 18 of Affidavit #1) as late as December 11, 2006, following an assault by him on her and after she had called the police, he “threatened” not to allow her to take the children out of the country. The point is that Mr. Mathews was aware that he could withhold his permission and that he was not about to give it if it meant a permanent move or a move that would not involve him coming along as a husband and father.

[69] In addition, the conversation that Ms. Thomson deposes to and which occurred sometime after January 11, 2007, is inconsistent with Mr. Mathews being aware that they would be living separate and apart once in Canada. In the conversation he said, in Ms. Mathews’ presence, that they were going to Canada for three years. It cannot be seriously suggested that the arrangement was that they were separating but both were going to return to Australia in three years. The remark is consistent with someone who was not aware that they were separating at all. Ms. Mathews did not say anything, at least Ms. Thomson has not deposed to it if she did, to correct what must have been, if her position is accepted, an obvious and serious misunderstanding on Mr. Mathews’ part.

[70] Finally, and most significantly, it does not make common sense for Mr. Mathews to agree to allow his children to leave on the basis of what Ms. Mathews says the arrangement was. By her account, he agreed to leave his native country where all of his family and friends live, travel half way around the world to a country where he has no family and no friends, knowing that on his arrival he would be living separate and apart from his wife and children. He agreed to do this, on Ms. Mathews’ account, in the hope that he would be able to get a job and remain in the country. He would be doing this knowing that his continued presence here was entirely at the whim of his estranged wife (and as it turned out, a whim that she acted on within a day of his arrival). He would be doing this in the hope that he could “win” back his wife in spite of the fact that she had made it clear to him that was highly unlikely to happen. He is to have agreed to this when, not two months before, he had flatly refused to even entertain the notion. I simply do not accept that he would do this.

[71] In her affidavit filed in the family law proceeding, Ms. Mathews deposed as follows:

It was decided that it would be better for all of us to move back to Canada. In January of 2007, we commenced the procedure to immigrate to Canada, which required me sponsoring the Defendant through formal citizenship procedures. The reason for the move was to assist the Defendant, because he felt he had more support from my family than his.

It is apparent that, until January 2007, Mr. Mathews did not have a significant relationship with Ms. Mathews’ family, and what relationship he did have was not particularly positive. While it may have improved during that month, it does not begin to explain why he would agree to such a move. Moreover, it is difficult to understand why he would need the support of his estranged spouse’s parents if he was going to be living separate and apart from their daughter.

[72] I am satisfied that Mr. Mathews was not told that he would be living separate and apart from his wife and children upon their arrival in Canada. I would reach this conclusion even without the impugned evidence, but that evidence removes any doubt about the matter. It is clear that Ms. Mathews did not tell Mr. Mathews of her intentions. Even if, in her mind, she did tell him, it is clear that he did not appreciate what she was saying. He did not, as it were, “hear her”.

[73] I am satisfied that the ostensible consent given by Mr. Mathews is not a valid consent, and thus Ms. Mathews has not established the exception in Article 13(a). Even if it might be said that there was, from her perspective, a valid consent (a conclusion I do not accept), the presence of a consent does not preclude an order under Article 12. It simply means that the order is not mandatory. I would make the order in any case.

[74] There will be a declaration that the children’s habitual residence was and is Australia. There will be a declaration that they were wrongfully removed from their habitual residence and that they be returned to Australia forthwith.

[75] Mr. Mathews is entitled to his costs of this proceeding on Scale B. In addition, if he is required to come to Kelowna to retrieve the children, he is entitled to the cost of two one-way airfares from Kelowna to Australia for the children and one round trip airfare for himself, together with necessary accommodation and meal expenses he incurs should he be required to make that journey.

[76] I recognize that, in view of my findings, Ms. Mathews may wish to return to Australia with her children. If that is the case, I will hear from the parties as to the preferred arrangements for returning the children.

[77] Finally, there will be an order setting aside the ex-parte order of May 16, 2007, and an order staying any further proceedings in that action.

“G.M. Barrow, J.”
The Honourable Mr. Justice Barrow

Citation:	*Mathews v. Mathews,*
	2007 BCSC 1825