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May 30, 2014 by Robert Franklin, Esq.

Not long ago I wrote about a promising development in child support law in California. There, a court of appeals found that a custodial mother who had abducted her child, not allowing the father to see the girl for many years, could not, as a matter of equity, claim child support arrears. Having abducted the girl, thereby preventing her from seeing her father, the mother came to the court seeking an equitable order of back child support. That wrongful behavior prevented her from benefiting from the equity of the court. The age-old legal nostrums that one who seeks equity must do equity and that one who seeks equity must come to court with “clean hands” had been violated by the mother, so her request was refused.

Well, in this case out of British Columbia, we have a similar fact pattern and a similar result reached in a different way.

Sibylla Giulia Hughes (nee, Verdi) and Calum James Hughes were married in July, 2006 and lived in British Columbia. Their daughter was born in January, 2007 and they separated in May of the same year.

In July 2007, Madam Justice Bruce granted an order providing for joint custody and guardianship of the daughter. Her primary residence was to be with the respondent father. The appellant mother was prohibited from moving the child from the Okanagan area of British Columbia. On August 2, 2007, Bruce J. changed the primary residence to the mother. The father was granted reasonable and generous access.

In December of 2007, Sibylla took the child to the emergency room complaining that the little girl was behaving abnormally. Apparently she instructed the ER doctors not to do a general blood screen for drugs, but to test specifically for a tranquilizer named Clozapine. And – lo and behold! – they found trace amounts of Clozapine in the child’s blood. That prompted her to accuse Calum of administering the drug to his daughter, a claim that he adamantly denied.

Calum pointed out that he did not and had never had a prescription for that drug and his mother, who sometimes cared for the child swore likewise. The court hired a doctor to administer psychological tests to both parents and generally look into the Clozapine matter. Dr. Michael Elterman did so and found both parents to be loving and responsible types who would never intentionally give such a drug to their daughter absent appropriate consultation with a physician.

On June 30, 2009, Mr. Justice Barrow granted the father unsupervised access on specified dates with telephone access to the mother when the child was with the father.

[8]       Before the father’s scheduled visit on July 17, 2009, the mother took the daughter to Italy. On July 21, 2009, Barrow J. ordered the mother to return the child to Vancouver and to surrender the child’s passport. On August 6, 2009, Barrow J. ordered costs against the mother and on August 28, 2009, he found the mother in contempt of his July 21, 2009 order.

[9]       A six-day matrimonial trial took place before Madam Justice Beames between October 19 and December 1, 2009. The mother participated periodically by telephone. She was permitted to cross-examine witnesses and adduce evidence, but not to testify. Judgment was reserved.

[10]     On December 14, 2009, Barrow J. found the mother in further contempt of his August 6, 2009 order and imposed a sentence of 10 days’ incarceration, which he suspended until January 15, 2010 in order to give the mother time to appear before the court to address the contempt, failing which a warrant for her arrest would be issued. The judge fined the mother $500 for her contempt of his July 21, 2009 order.

[11]     On December 16, 2009, the Provincial Court issued a warrant for the arrest of the mother for breach of s. 282 of the Criminal Code, R.S.C. 1985, c. C-46.

[12]     On December 18, 2009, the father initiated proceedings in Italy for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 89, Can. T.S. 1983 No. 35 (the “Hague Convention”). A hearing took place in Italy on January 13, 2010.

But Calum was unable to attend the hearing in Italy, so Sibylla had her evidence heard unopposed. It’s clear from the portions of the transcript of that hearing, quoted by the court in British Columbia, that she lied in several particulars. Most importantly, she led the court to believe that the Canadian court hadn’t seriously looked into the allegations of doping, when in fact it had but simply not agreed with her interpretation of the facts.

Also, she, for the first time alleged that Calum had threatened her and abused alcohol and “psychotropic medication.” There is no evidence in the Canadian court case to support such an allegation and apparently none in the Italian case either.

So, based on Giulia’s misrepresentations of facts, and Calum’s absence, the Italian court found that, although her abduction of the child had been wrongful, it would not order her to return the child to Canada. That’s because the Italian judge found that there would be “serious physical or psychological danger or an intolerable situation for the child if returned.”

To say the least, that’s a serious misreading of the intent of the Hague Convention. The Convention intends that, where a child is wrongly abducted, it must be returned to its country of habitual residence (in this case Canada) and allow the courts of that country to adjudicate any claims of abuse, neglect, danger, unfitness, etc. The exception noted by the Italian court is meant to apply only in situations in which the court in the child’s home country isn’t capable of adjudicating the matter or protecting the child. One imagines Taliban courts that discriminate overtly against one parent or the other.

But of course such is not the case in Canada, whose courts are, if anything, radically pro-mother, and certainly attuned to notions of parental abuse of children.

Now, at this point it’s worth pointing out a few facts, if not overlooked by the courts, then apparently not understood by them. Giulia became pregnant before the two married. She left Calum just five months after the child was born. She immediately began a campaign of separating the child from her father, first by getting primary custody, then by moving away from their home in Okanagan and finally by her claim that Calum had drugged the child with Clozapine, a drug she herself suggested the ER doctors screen for. Then of course she abducted the child in violation of court orders, national and international law. And finally she, for the first time raised claims of abuse in the Italian court.

All that can be read as a consistent campaign by an Italian mother to have a child and then wrest it from its father. Italian courts aren’t exactly known for being anti-mother, particularly anti-Italian mother, after all.

The point being that, if I’m any judge, I think I see exactly what happened here.

But whatever the case, amazingly enough, after Giulia kidnapped the child, the Canadian court ordered Calum to pay child support to her.

Child support is the right of the child. The child is currently with the [mother] in Italy. There is no way for me to know when the child will be returned to Canada and commence residing with the [father]. It would be wrong to deprive [the child] of reasonable child support from the [father] until such time as he provides support to her by providing her residence and for her day-to-day needs. Consequently, and notwithstanding the [mother’s] contempt for this court and its orders, I will order that the [father] continue to pay child support to the [mother] for [the child] until such time as [the child] comes into his care.

In short, that’s the exact opposite of what the California court ruled in its admittedly somewhat different case. The BC court says nothing about the requirement that Giulia do equity, and indeed she hadn’t. She’d violated a number of different laws all for the purpose of abusing her daughter by depriving her of a relationship with her father. No, here Mom can literally do anything she wants, regardless of how many laws she breaks, and will still get paid.

But about six months later, Calum had had enough and stopped the checks. So Giulia, despite being a criminal, decided to gild the lily; she made a claim in the Canadian court for back child support. Yes, she’d abducted the child; yes, she’d denied the girl any relationship with her father and her father any relationship with his daughter; and yes, that violated court orders and civil and criminal law. But she apparently thought she could get a court to order Calum to pay her anyway.

She was wrong, albeit for different reasons than obtained in the California case.

The chambers judge granted his application to rescind the child support order and cancelled arrears under that order. Held: Appeal by the mother dismissed. The majority found the chambers judge had correctly found a material change in circumstances in the mother’s refusal to return the child to the father’s custody. The trial judge’s award of child support was transitional pending the return of the child to the father. Upon the child being placed in the father’s custody, the father would be in a position to financially support his child. The mother’s conduct had thwarted the father’s ability to support the child in the manner contemplated by the court in this jurisdiction.

In short, her abduction of the child and refusal to return her to her father’s care constituted a material change of circumstances. Plus, her abduction actually prevented him from providing a home and support, so Giulia gets the child, but in a brief moment of judicial lucidity, not the income of the man she so grievously and intentionally wronged.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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