Cannock v Fleguel - International Child abduction case

The international child abduction case of Cannock v. Fleguel, heard in Owen Sound by Justice Robert Thompson on May 15th, 2008 which resulted in his written decision of June 27th, 2008 was appealed to the Court of Appeal for Ontario. Justice Thompson ruled that the child was abducted from his habitual residence in Australia and that the mother had to return the child to Australia.

The appeal was heard on Friday, October 3rd, 2008. The judges'  written decision is forth coming. The 3 judges hearing the appeal dismissed the appeal and the father won. The court therefore agreed that the child had been abducted by the mother, Jessica Fleguel, and sent the case back to the Superior Court of Justice in Owen Sound, Ontario. for implementation of the deportation.

This case involved the mother protesting in the media and on the streets of Owen Sound and her picture p caring a large picture of one of her children was published in the local paper.  The mother claimed that she had left Australia to come to Canada for the purpose of giving birth to their child and caused the child to spend 5 weeks in Canada after the birth before she and their baby returned to Australia where she, the father and baby lived and made their habitual residence until the mother became pregnant again at which time she again went to Canada to give birth and did so on or about July 14th, 2008.

The mother claimed to be a victim of domestic violence which is generally irrelevant to a Hague Convention case. The 81 countries that have signed on to this Hague Convention did so in acting in the best interests of children.  The convention's purpose is to stop parents from abducting their children to another country for the purpose of mounting a  unfair insurmountable family law case.

In her very public case the child abductor, Jessica Fleguel, claimed that her child was a Canadian citizen  and was therefore entitled to stay in Canada.  She didn't divulge to the media and the public that the biological child of an Australian citizen can automatically have, effectively,  dual Australian/New Zealand-Canadian citizenship upon application by the parents to the Government of Australia. The issue wasn't even relevant since the child's habitual residence was in Australia but was not presented to the public in the mother's public campaign.  The father knew about the mother's public campaign but did not approach the media for public comment or make any publicity.

With regards to the issue of alleged domestic violence by both parties the family court of Australia is the jurisdiction to hear their complaints. All allegations must be decided by the appropriate family court which in this case is in Australia.

Justice Thompson stated in his ruling, among other things :

"[8] For the purposes of this Application and on the basis of the material filed with this court, I accept that just prior to Ms. Fleguel's departure from Australia, Mr. Cannock intended to apply to the Federal Magistrates Court of Australia for an order for joint custody of {Child's name* } and for an order that Ms. Fleguel be restrained from removing [Child's name*} from Australia.

[9] I find that Ms Flegeul knew of the impending application to the Australian courts and decided to leave their jurisdiction. She did so on or about November 22, 2007 ...

[14] I note that the evidence before this court relates to physical assaults between the parents, not directly involving the child. I further note that  the lifestyle of the father, his apparent disregard for societal rules and lack of parenting skills, as alleged by the mother, were not of sufficient concern to her while in Australia and residing with the father to cause her to take any action to alleviate those concerns."

From a legal perspective, the purpose of sending the child back to the country of habitual residence, in this case Australia, is to have a hearing at which all witnesses can testify under oath, be cross examined at trial and for all the facts to surface and be considered by the family court. Hague Convention cases are not meant to replace family law cases and are not, open to extensive examination of witnesses and such which can only happen in a full trial in one country. The purpose is to review the issue of which country was the habitual residence of the child and to determine if the child was abducted from that country and to provide proper direction to police causing them to act to insure the return of the abducted child..

Larry Miller MP Lobbied the Judge
The mother played on public sympathy for the purpose of justifying her abduction of the child. She was aided by Larry Miller MP who wrote a letter to the judge presiding over the case. The judge then took  the extraordinary step of fully examining the issue of child protection services available in Australia and made the Australian Government prove that they did have proper government services for protecting neglected and abused children.

It is the opinion of our President, Grant Wilson, that such a matter in a Hague case is very unusual and was likely caused by the lobbying of the MP, Larry Miller.

On October 6, 2008 the Australian father, Craig Cannock,  stated to the the Canadian Children's Rights Council that  he, the Ottawa lawyer representing him and paid for by the Ontario Government as required by the Hague Convention, Legal Aid Ontario and the Attorney General of Ontario ( the Central Authority  for Ontario for the administration of international child abductions cases under Hague)  all are evaluating the actions of Larry Miller for the purposes of suing him.

The Ottawa lawyer representing the father had to travel to the Owen Sound court for 6 hours each way by car and stay overnight before driving back.  This is a considerable expense for lawyer whose normal hourly rate is $225 per hour.  Is Larry Miller MP going to voluntarily pay for that and other costs?

Craig Cannock claims that he seeks damages for the delay of the return of his child caused by an additional Owen Sound court hearing necessary and requested by the presiding judge to consider the letter of  Larry Miller MP and the full disclosure to both lawyers. It should be noted that the letter of Larry Miller states that he cc'd only the mother's lawyer and not the father's lawyer and the court in any case had to hold a hearing on such a matter.

In addition, there is the issue of the cost of the court's time. It cost substantial funds for court to operate. The total compensation package for a federally appointed judge of the Superior Court of Justice of Ontario exceeds $300,000 per year.  Court time costs money. The father's lawyer wasn't paid by Legal Aid Ontario for travel time probably and in any event didn't received his usual fee of $225/hour for all time spent dealing with the actions of Larry Miller in the past with relationship to this case and the future costs. Legal Aid Ontario did pay for time taken in delay of this case and likely caused by Larry Miller's letter to the presiding judge and the judges strong reaction and investigation into the Australian Government's system of child protection.

The father also stated that on October 7 or 8 ( Owen Sound time ) he intended to write Chief Kaye of the Owen Sound Police Services  to cause an investigation into the actions of Larry Miller MP for possible illegal criminal actions. He also stated that in his letter he asked the Chief to have his police services step aside and request the Ontario Provincial Police investigate this matter because it appears that Larry Miller would consider it appropriate to lobby the Owen Sound police with impunity considering the investigation is about written lobbying of a judge presiding over a Superior Court of Justice matter.

The total time for a case from start to finish under Hague is 6 weeks for the Canada to locate the child and have all court proceedings finished and the abducted child returned. It is now approaching a year and the Owen Sound court must now  have a hearing to order the child be sent back to Australia and provide detailed order with the particulars of the return of the child.

The Costs of the Appeal
The father is of the opinion that the appeal had no merit at all and would never have succeeded. He stated to the Canadian Children's Rights Council that he believes the judges over-concern about Australia's ability to protect the child provided, at best, a possible basis for an appeal. At the appeal, one of the 3 judges asked about the mother's legal fees. The mother had been on legal aid for the initial Owen Sound court case and had been refused legal aid for an appeal which in the view of legal aid, had no merit and was a delaying tactic. Martha McCarthy, the lead lawyer of the 3 lawyers used by the mother on her case before the Court of Appeal stated that her client's fees were about $25,000.  

As a matter of  interest, Martha McCarthy is one of the most prominent family law and constitutional lawyers in Canada.  In the Supreme Court of Canada as well as in many provincial/territorial courts she won right for gays and lesbians to be legally married. She also handled the 1st lesbian divorce in Canada.

The Court of Appeal of Ontario awarded the father $10,000 in legal costs although at one point they considered the same amount as the fees charged by McCarthy of $25,000.00

The father noted the hypocrisy of McCarthy who discussed the "expedited" nature of Hague Convention cases before the Court of Appeal but didn't file the Notice of Appeal until the maximum 30 days after the written decision of Justice Thompson of June 27th, 2008 and was fully " fully aware of the verbal decision given by Judge Thompson at the hearing of May 15th, 2008." The court file then shows that the actual appeal documents were filed by McCarthy at the maximum time allowed after that on or about the middle of September,  2008. Considering the 6 weeks under the Convention to find and have all legal procedures completed, it is the view of the Canadian Children's Rights Council that the Ontario justice system was terribly ineffective by allowing such delays in the process and the return of an abducted child. The case is approaching 1 year from the time the child was abducted and still there is another order to be made by the Owen Sound court and that may be appealed according to the judges of the Court of Appeal for Ontario that heard the 1st appeal.

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* note: There is not a publication ban on this court case. The Canadian Children's Rights Council sometimes does not publish children's names.