The Sad Truth About Happiness

by Anne Giardini

  The baby’s mother, Lucy Selgrin, denies that she had anything to do with the child’s disappearance on the day that Potenza arrived in Canada wanting nothing more than to hold his infant son for the first time. Selgrin alleges that her sister went into hiding with the child without her knowledge when it became known that Potenza was seeking custody.

  The baby at the center of the dispute is tiny Philip—or Filippo, as his father prefers to call him. The Court of Appeal will be asked this week to decide who should have custody of him.

  “This is a test case,” says Duane Classen, spokesman for Fathers Against Custodial Treachery, a small group opposed to what it asserts is systemic bias against fathers in the justice system.

  “Judges almost invariably ignore the facts and award custody of children to mothers,” Classen claims. “In this case, the father, Mr. Potenza, has demonstrated that he is by far the better parent. For custody to be awarded to the mother in this situation would be yet a further blatant example of the unfairness of our courts and our laws. Our members are planning to be in court to support Mr. Potenza in his quest for justice. We want the court to know that fathers matter too.”

  Potenza and his wife Ivetta ease their anxiety with espresso and cigarettes as they wait in their Vancouver hotel room, and hope against hope that they will be permitted to take Filippo home to Rome. He would be their only child and an answer to years of prayer. For Ivetta Potenza, Filippo would be the baby she never expected to have.

  Although Filippo is less than three weeks old, he has already slipped through the Potenzas’ fingers twice.

  The first time was when Selgrin left Italy without telling the Potenzas that she was pregnant. Filippo is the product of a brief relationship between Selgrin and Mr. Potenza, an indiscretion for which Ivetta Potenza says she has forgiven her husband. “Italian men!” she says, raising her hands in a charming shrug, and gazing fondly at her husband of twenty years.

  The second time was when Selgrin’s sister, Maggie Selgrin, left the province with the baby in breach of two court orders granting custody of Filippo to the Potenzas. Maggie Selgrin now faces criminal charges in connection with what Classen calls “kidnapping, no more and no less.”

  Potenza agrees. “I contacted the authorities here and in Italy only to be told I must find my son myself and bring my claim to the Canadian courts,” he says. “I am a simple man. My wife and I must place our faith in your courts.”

  Faith that Classen asserts is misplaced. “The courts start from the premise that children belong with their mother. Fathers are routinely labeled as aggressive, violent, sex offenders, or worse. I am just one example, but there are thousands more like me. Just because I lost my temper once or twice with my ex-wife over her overly permissive parenting style, I have a restraining order against me and I can’t see my own children. The fact is that there is no justice for fathers.”

  “Every day, my emotions run the gamut, from heartbreak to rage to sorrow, and back to rage. It never stops,” Classen says from the kitchen table in his trailer home just outside of Abbotsford.

  “But they’ll never break me. Everything I’ve gone through has just made me more determined. I’ll get my kids back if it is the last thing I do.

  “And I am committed to helping other fathers so that they don’t wind up like I did, with an empty home and an empty heart.”

  Word has spread both locally and in Italy about the Potenzas’ fight to regain their stolen son, a battle that has received extensive coverage in the Italian media and is beginning to gain notice here.

  “Will justice be done?” Classen asks. “Don’t hold your breath.”

  COURT OF APPEAL

  for

  BRITISH COLUMBIA

  BETWEEN:

  Gian Luigi Massimo Potenza

  Petitioner

  (Respondent)

  AND:

  Lucinda Joanie Selgrin

  Respondent

  (Appellant)

  BEFORE: The Honourable Mr. Justice Judson The Honourable Mr. Justice Oriel The Honourable Madam Justice Yu

  Reasons for Judgment of Madam Justice Yu:

  [1] This appeal is brought on an urgent basis by the mother of the child, Philip Magnus Selgrin, from the order of Findlaysen J. granting custody of the child to his father, Gian Luigi Potenza, the Respondent before this Court. The urgency is compounded by the season, by the facts that the child is only a few days old and has been taken into care temporarily, and by the stated desire of the father to remove the child permanently from this jurisdiction.

  [2] The case is somewhat complicated by the fact that the child was removed from this province, his place of first residence, by his maternal aunt when the child was a few days old. Counsel for the father argues that this transfer of residence leaves the child’s place of ordinary residence for purposes of application of the Hague Convention on the Civil Aspects of International Child Abduction open to dispute.

  [3] The Hague Convention on the Civil Aspects of International Child Abduction is designed to ensure that abducted children are returned to their country of habitual residence. It presumes that custody and visitation disputes are properly resolved in the jurisdiction where the child habitually resides. The Convention applies in cases where both the country of the child’s habitual residence and the country where the child has been taken are signatories to the Convention, the child is younger than 16 years of age, and the child has been wrongfully removed or retained in breach of rights of custody under the law of the state where the child is habitually resident.

  [4] It was forcefully and, in my view, creatively argued on behalf of the father before us that, although the child has now been returned to this jurisdiction, because he resided in this province for only four days before the removal of the child to the province of Quebec, there should be no presumption in favour of this jurisdiction as the child’s state of habitual residence.

  [5] It was further argued that the child will suffer grave risk of psychological harm if he remains in this jurisdiction and is deprived of exposure to his Italian family and culture, which counsel for Mr. Potenza characterizes as his “birthright.”

  [6] Philip was conceived in Italy last year during what the father describes as a brief extramarital affair. The mother relocated to her family home during the summer, and Philip was born here on December 12th of last year. He and his mother resided in this city for only four days, during which time his father obtained a custody order from the Italian courts, apparently without notice to the mother. When the father arrived here and sought to enforce the Italian custody order, the child’s maternal aunt, Maggie Selgrin, is alleged to have absconded with him to Quebec, apparently in an attempt to avoid removal of the child to Italy.

  [7] I am in agreement with the appellant that, notwithstanding the removal of Philip as a very young infant from this jurisdiction to Quebec, his state of habitual residence was and remains Canada. Accordingly it is my view that the burden is on the Respondent to establish that there is a grave risk that leaving the child in this jurisdiction would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

  [8] The matter came before us on an amended Notice of Appeal and fresh evidence was adduced with leave given by Mr. Justice Shaw. The fresh evidence goes to the issue of illegal acts alleged to have been committed by the father and his spouse. The mother has provided an affidavit concerning statements made to her by the father, Mr. Potenza, which she in her affidavit characterizes as “boasts,” concerning the manner in which Mr. Potenza obtained information about the child’s whereabouts and concerning subsequent attempts by Mr. Potenza and his wife to take the child from his aunt and remove him from Canada.

  [9] I conclude that the Hague Convention has no application to Philip. I find that he has been and remains a habitual resident of Canada for the few short days of his life and that there has been no wrongful removal of the child from Canada. I further find that the father has not discharg
ed the burden of showing that there is a grave risk that leaving the child in this jurisdiction would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The cultural loss referred to in the affidavits by psychologists, sociologists, and others concerning deprivation to the child if not exposed to his Italian heritage speak to arguments about the child’s best interests, which is for the court to determine, and ignore the fact that Philip is half Italian and half Canadian. He is entitled to exposure to the cultures of both his parents.

  [10] In making these findings, I do not condone the child’s aunt’s actions of removing the child from this province without notice to the child’s father. I understand that this matter will be dealt with in separate proceedings.

  [11] Having considered all of the evidence, it is my view that the best interests of the child will be served if the custody order made in the court below is overturned and custody of the child is granted to the appellant, Ms. Selgrin. I am of the opinion that this situation requires appellate intervention.

  [12] The trial judge concentrated on the backgrounds, characters, personalities, family environments, and economic means of Mr. Potenza and did not give sufficient recognition to Ms. Selgrin’s upbringing, family support, education, marriage plans, and parenting skills. He seems to have accepted with little reservation that Mr. Potenza would be a better parent, notwithstanding that Mrs. Potenza, and not Mr. Potenza, would in fact be the primary caregiver. We have had the benefit of a report that describes Mrs. Potenza as somewhat narcissistic and lacking in emotional maturity.

  [13] The trial judge also discounted the Selgrin family’s strong family ties, in preference for the Potenzas’ family situation. While a grant of custody to Mr. Potenza will permit Philip to join what appears to be a warm and extensive family in Italy, by the same token if custody were awarded to Mr. Potenza, the child would be deprived of a full relationship with his relatives on his mother’s side: his uncles and aunts, cousins and four grandparents.

  DISPOSITION

  [14] For the foregoing reasons, notwithstanding the respect due to the experienced trial judge in this case, I am of the opinion that he erred in his determination that Philip’s best interests required that Mr. Potenza be his custodial parent. I would allow the appeal and award custody of Philip to Ms. Selgrin.

  [15] While I do not think it is appropriate to finally establish the specific conditions of access at this time, I do grant Mr. Potenza generous access on the general terms set out below. If counsel are unable to agree on the transition or access arrangements, they should apply to the Courts for further direction.

  [16] While the child is under the age of eight, he is to reside with his mother in Canada. The father will have supervised access to the child as often as he might reasonably wish to exercise it. He may exercise his rights in Canada or, if the mother agrees and at the father’s cost, the mother and child may travel to Italy so that the child can spend time with his father. After the child reaches the age of eight, or earlier if the mother consents, the father shall have unsupervised access to the child in Italy for one month of every summer and two weeks during the school year.

  [17] I think it appropriate that the parties each bear their own costs.

  I AGREE: “THE HONOURABLE MR. JUSTICE JUDSON”

  I AGREE: “THE HONOURABLE MR. JUSTICE ORIEL”

  GLADSTONE, LUI & DAWES

  Barristers & Solicitors

  January 20, 2000

  Dear Ms. Selgrin:

  Re: Estate of Charles Edward Addenbrook

  May we extend our deepest sympathies on the recent death of Charles Addenbrook.

  I write to advise you that Mr. Addenbrook had recently revised his will to name you as one of his beneficiaries.

  I would be grateful if you would kindly contact me at your earliest convenience so that we may discuss Mr. Addenbrook’s bequest.

  Yours sincerely,

  Christine Dawes

  cd/er

  Lucy Selgrin

  and

  Ryan King

  Invite you to share their happiness

  as they exchange

  vows of marriage

  and begin their

  new life together

  Saturday, September 16, 2000

  at 3:30 p.m.

  At the home of Jack and Jean Selgrin

  3990 West 16th Avenue

  Reception to follow

  Insights, Interviews & More ...

  About the Author

  Meet Anne Giardini

  Born in Toronto in 1959, Anne Giardini has lived in several Canadian cities, as well as England, France, and Italy. She now lives in Vancouver with her husband and three children. A former columnist for the National Post (of Canada), in addition to writing, she practices law and the violin. Her favorite writers include Carol Shields, Alice Munro, John Updike, Virginia Woolf, Nicholson Baker, Barbara Pym, and Colson Whitehead.

  A Conversation with Anne Giardini

  “We would make different choices from those our parents made,” you write in The Sad Truth About Happiness, “and have lives different from theirs in ways we were certain of but could not predict.” How does your life differ from the lives of your parents?

  Until I was ten years old and in fifth grade I imagined that I would do exactly as my mother had done: have five children and work at bits and pieces from home. I was ten at the end of the 1960s, a period of enormous change and disruption, a time when commonly accepted ideas were turned inside out and held up to critical scrutiny. Some of this even percolated through to children; one day at school I had one of those moments of realization and clarity that I wish came more often: I might well have to fend for myself and should have a career. I think from then on I never questioned the notion that I would live differently from my parents. And in fact, I did marry later, bear fewer children, and have things my mother didn’t have, at least when my sisters and brother and I were young: an office, a boss, a briefcase, a paycheck, a secretary. Looking into the future at ten years of age, all of this seemed marvelous and exotic and adventurous.

  Your mother was also a writer. Like you, she started writing long after her youth. How did she influence your decision to write, if at all?

  I always knew I would write. As a child I liked to tell long, complicated stories to my three sisters—the most attentive and astute of audiences. Whenever my Manchester-born sister, Catherine, thought that a narrative needed more drama she would urge me to “put a fire into it,” and I would conjure up a dramatic blaze that threatened but never consumed the heroes and heroines of the story. I included a fire in The Sad Truth About Happiness for Catherine’s benefit.

  For several years I wrote a weekly column for one of Canada’s national newspapers, the National Post; this was the best possible experience. Having to write from scratch on a regular basis forced me to pay attention and react quickly and authentically to life, people, and events. My mother’s advice—and I have seen other good writers do this—was to always produce my best work. Nothing should be held back or saved for later. Writing is like drawing from the most abundant aquifer— something new and interesting always wells up to replace what has been taken. When I stopped writing the weekly columns I realized that just enough time might have opened up for me to undertake something more sustained.

  My family had also been ambushed when my mother was diagnosed with an aggressive form of breast cancer. This led me to think in a new way about happiness and its central difficulty: It can’t be sought directly and can’t be grasped securely. The novel contains much of my thinking about happiness over the two and a half years I spent writing it, as well as other issues and ideas that interest me.

  “As a child I liked to tell long, complicated stories to my three sisters. . . . Whenever my Manchester-born sister, Catherine, thought that a narrative needed more drama she would urge me to ‘put a fire into it.’”

  What was the inspiration for The Sad Truth About Happiness? How
did you start writing it?

  I had as one of my starting points an encounter with a single friend in her late thirties. We were seated together at a dinner party. We drank a bit too much and began to have a quite amusing talk that led to the topic of pain—she had just run a marathon. She asked me about childbirth. I told her that for much of the labor pains come and go, so there is some respite. To emphasize the point, I squeezed her knee quite hard and then relaxed the pressure. I was surprised to see tears come into her eyes and said,“I can’t have hurt you, can I?”

  “No,” she said.“It’s just that no one ever touches me anymore.”

  I felt that this was a most intimate insight into what life can be like when you are yearning for love. I realized as I began to write that, as the author, I could provide Maggie with someone to love. Perhaps because I was so fond of her myself, I found that more than one of the men to whom she was introduced became in fact quite taken with her.

  Maggie says that she wants “to do something manifestly practical.” Is this an echo of your own choice to be a lawyer first, then a writer?

  I see myself as very much the blended product of a gentle, creative mother and a resolute, engineer father. Once I realized I would have a career I thought of becoming an actress; I eventually learned I had absolutely no talent for acting. When I went to university I very consciously took a broad spectrum of courses; in the end, law had what it seemed I needed—rigorous challenges, the creative use of language, and many stories. I have a fairly rare combination of careers, but I am not surprised at all that so many lawyers I meet write or want to write fiction. The law is all about stories. It contains thousands— millions—of individual narratives and creates from all of these narrative threads a good part of the cloth, the stuff, that we call society. On the other hand, I am beginning to believe that novels are a form of advice, so my two careers may be more closely linked than might be obvious at first glance.

  “I had as one of my starting points [for the novel] an encounter with a single friend in her late thirties.”