Case: Sampley v. Sampley, 2015 BCCA 113 

Key Words: Family Law, (alleged) Child Abduction, Hague Convention

Basic Facts:

  • Appellant Michelle (Sampley) and Respondent Matthew (Sampley) marry in Calgary, 2010
  • Appellant Canadian, Respondent American
  • They first live in Anchorage, where their son is born, 2011
  • Later on in 2011 they move to Washington (state), until 2013
  • In late 2013 they again move to Billings (Montana), to where the Respondent’s employment is transferred
  • The Billings house is “uninhabitable”
  • After four/five days of motel living while the house was being fixed up, the Appellant tells the Respondent she is taking their child with “basic clothing and toys” to “stay at her parents’ residence in Elko, B.C.”, “only going for three weeks” (the latter the Respondent’s belief) (para. 5, B.C.C.A.; some quotes from chambers judge, paras. 3-4).

Chambers Judgment

The father applied to the B.C.S.C. to have the child returned, which application was granted “conditional on the father’s satisfying financial and other obligations imposed under the order” (B.C.C.A., para.1).

The chambers judge referenced the objects of the Convention, which are set out in Article 1 of same:

“a) to secure the prompt return of children wrongfully removed to or retained in  any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

The B.C.C.A. at length (in their para. 7) set out the chambers judge’s analysis, in particular with regard to:

  • criteria to determine habitual residence
  • settled intention
  • “appreciable” period of time
  • threshold for “actual exercise of custodial rights”

Appellant mother’s grounds of appeal include:

  • judge erred in analysis of habitual residence (of child)
  • also erred in concluding father had not acquiesced in child’s relocation to Canada
  • failed to respect a Montana court order it’d no jurisdiction over custody
  • failed to give effect to Article 13(b) of the Convention (child not to be returned where exposure to physical/psychological harm) (para. 8)

Respondent father’s grounds of appeal (by way of cross-appeal):

  • judge erred by making orders not applied for
  • imposition of conditions
  • costs (para. 9)

After setting out the relevant Convention articles, the B.C.C.A. dealt with the following issues:

  • habitual residence (paras. 16-18)
  • acquiescence (paras. 19-21)
  • (alleged) domestic abuse (paras. 22-43)
  • jurisdiction in Montana and loss of residency status (paras. 44-48)
  • and the Respondent husband’s cross-appeal (spousal and child support, para. 50; a B.C.S.C. order purporting to take effect in Montana, para. 51; funding of transportation and rental accommodation, and letter by father re mother returning to Canada with their child, para. 52; costs, para. 53)

holding, “…I would allow the cross-appeal and set aside those terms of the order, save the order as to costs. I would order the return of the child to the United States within two weeks of the date of this judgment. Returning the child within two weeks reflects the intent of the original order” (paras. 54, 55).

I happened to come across a summary of the case on SLAW, in which counsel for each side kindly (and I would say most professionally, because each is written pretty objectively) a “comment” on the case, ranging from about a page to two pages.

Georgialee Lang (of Georgialee Lang & Associates, Vancouver), counsel for the Appellant started her comments with this:

“Sampley v. Sampley is a case with odd twists and turns, presenting circumstances that gave rise to an appeal and a cross-appeal from a Supreme Court order that Ms. Sampley return to the State of Montana with her 3-year-old son, subject to certain conditions, after moving with her husband’s consent to Elko, British Columbia in September 2013.”

And Jamie Lalonde (of Miles Zimmer & Associates, Cranbrook), counsel for the Respondent (and Appellant by Cross-Appeal) stated thusly:

“This appeal deals with several significant and unique legal concepts relating to the Hague Convention on the Civil Aspects of International Child Abduction, including jurisdiction, acquiescence of the removal of the child, habitual residence of the child, conditions for the return of the child to the US, allegations of domestic abuse, and the mother’s US immigration status.”

Click Here for more comments by counsel.

And Click Here for the full reasons of the B.C.C.A.

Discuss on CanLii Connects