Child Abduction Legal Information

J.M. v I.L.

The SCC denied leave to appeal this recent Hague Convention case from the New Brunswick Court of Appeal. The Court of Appeal provides an analysis of the hybrid approach in determining habitual residence which is a question of mixed fact and law. The Court also approved of the practise of making temporary awards of custody pending the outcome of the Hague case and approves the application of international jurisprudence in deciding Hague case.

Geliedan v. Rawdah

The Ontario Court of Appeal last week, issued their decision in an interesting abduction case. It involves a 6 year old child. The Mother is a Lebanese born citizen of Lebanon and Canada. The father is a Saudi Arabia born citizen of Saudi Arabia and the UK. The daughter, while born in the UK, is also a Canadian citizen. Parties married in the UK in 2012, and shortly after the child’s birth in 2013, they separated. Parties entered into a Consent Custody Order in 2015 in the UK, which provided that the child’s habitual residence was the UK and that neither party could remove the child from the UK without written consent of the other or court order. The child was to primarily reside with the mother, but the father was to have regular weekly parenting time. Father moved to Dubai in 2015, but continued to exercise parenting time, although not regularly. In 2018 mother stated she visited *Dubai with the child for what was to be a 2 week period-she had return tickets booked. She alleges the father confiscated the child’s and her own passport. About 14 months later the mother surreptitiously removed the passports from the father’s home when he was out of the country. In May 2019 the mother took the child to Toronto via Lebanon. At the lower court the father successfully argued that the child’s Habitual Residence had become Dubai prior to the mother’s wrongful removal to Ontario. The father applied under the Children Law Reform Act [CLRA]. The Ontario statute, unlike Alberta’s Extra Provincial Enforcement of Custody Orders Act [EPECOA], uses terminology like Habitual Residence, whereas the Alberta statute uses ‘real and substantial connection.’ The Court of Appeal criticized the lower court judge’s reference to the Hague Convention’s legal framework, where the U.A.E. is not a Hague Convention signatory [The UK Supreme Court in Re: J. (A Child) (Custody Rights:Jurisdiction) [2005] UKHL 40, per Baroness Hale stated at paragraph 22, “……there is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which are not parties to it.”]. The Appeal Court held that it was an error for the lower court judge to apply a Hague Convention approach when determining this matter under the CLRA. A critical difference between the CLRA and the Hague Convention, is that if the court finds a wrongful removal or retention, under the Hague Convention, the court must order the return of the child unless a defence applies. The CLRA does not obligate the court to order a return in such circumstances. The Appeal Court also noted that “ [38] When considering whether to return a child to a non-signatory state, there is no basis to assume that the receiving state will determine custody and access based on the child’s best interest…..”There was a dispute as to whether the U.A.E. would apply a best interests approach. In this case the mother was Christian and the father Muslim. The mother’s expert opined that under Sharia law, the parents could be treated very differently in terms of their suitability as a custodial parent. The Appeal Court stated that habitual residence need not have been decided in this case, and that the father’s application be stayed pending his proceeding in the UK court pursuant to the Consent Order for the return of the child to the UK. Only if the UK court declines jurisdiction may the father reapply to the Ontario court.

Onuoha v. Onuoha

The Ontario Court has provided insight into determining whether an alleged abduction of the couple’s children by the mother from Nigeria to Ontario fell into the urgency category to enable the case to proceed. While at first blush the case involving a kidnapping would appear to meet the Ontario Court’s criteria. However the case was determined not to be urgent in the face of the Government of Canada travel restrictions due to the COVID 19 Pandemic. The Court reasoned that there was a greater risk in having children travel internationally at this time. The Court stated that the father had been diligent in pursuing the return of the children so no status quo would be created. Counsel for the mother also advised the court that she was exhibiting COVID 19 symptoms, and was of the opinion that an agent should not attempt to argue the motion. The case was rescheduled to June 2020.

Brexit and International Family Law

The International Academy of Family Lawyers, European Chapter awarded Eleri Jones (London) the 2020 Young Lawyer Award for her essay titled “Brexit and International Family Law.” For practitioners dealing with the various Hague Conventions and their impact on International Family Law, it is important to understand the changes that will flow from Brexit.

G.R.C and M.T.M – 19-08-19

In May of 2019,1 heard and granted the application of Mr. Mills Jr. under the Hague Convention for the return to Bermuda of the child of the parties. Ms. Chin had gone to Toronto over the Christmas holidays to visit family and, without the consent of Mr. Mills Jr., simply did not return to Bermuda. Instead, resettled with the infant child in Calgary. I found the habitual residence of the child to be Bermuda and directed him returned there.

Mr. Mills Jr. now applies for costs. Both parties have provided their written submissions thereon. Costs, even in Hague proceedings, are still in the discretion of the Court. Article 26 of the Hague Convention says that I may order reimbursement of travel costs and of legal representation. This does not affect the exercise of my discretion under our Rules of Court and my obligation to consider the relevant factors under Rule 10.33.

R.V.W. v C.L.W., 2019

The parties commenced cohabitating in Calgary in about 2015. The father, an American citizen, had overstayed his visitor’s visa. The parties married in January 2017 and took other unsuccessful steps to allow him to remain in Canada. The father was denied permission to stay, and he returned to the United States in February 2017. The mother, a Canadian citizen, followed him to Texas, where their child was born in September, 2017.

CCO v JJV, 2019

The Applicant and Respondent are the parents of JRV, the only child between them (“the child”), who was born in January of 2011. The mother is an American citizen and resides in Norwood, Massachusetts, a municipality in the greater Boston region. The father is an American and Canadian citizen and currently resides just outside Edmonton, in Lancaster Park, Alberta. The child has dual American and Canadian citizenship.

The mother and the father were married on January 1, 2010 in the province of Quebec. Approximately two months before the child was born, the parties moved to Boston for the child’s birth. The parties separated in April of 2011, with the mother and child residing in Boston and the father residing in Quebec.

G.R.C and M.T.M., JR.

The parties met on-line and began their relationship in 2015. In December of 2015, Ms. C., “the mother”, moved to Bermuda. The parties were married there on June 24th, 2016, and resided together in Bermuda until December of 2018. There was one child, M.T.M., III, “the child”, born to them on October 27th, 2018, in Bermuda.

On December 11th, 2018, the mother left Bermuda with the child to visit her family in Toronto for Christmas. The child was travelling on a Bermudian Passport and with the consent of Mr. M., Jr., “the father”, although he says this was only on the understanding and/or the agreement that she and the child would return January 2019. They did not return. The mother’s decision not to return to Bermuda and her communication of that decision to the father is the subject of further discussions later in these reasons.

R.V.W. v. C.L.W.

Application by the father for the return of the parties’ one-year-old child to Texas under the Hague Convention. The child was born in Texas, where the parties were married and lived together at the time. When the father lived in Canada, he was convicted of assaulting his former partner and refusing to provide a breath sample. The mother claimed the father and his family were emotionally and physically abusive to her and the father abused alcohol, both of which the father denied. When the mother was pregnant, they had an altercation during which she pushed her laptop into the father’s face and he pushed her off a chair. The father consumed alcohol and drove too quickly with the mother in the car. The father caused a kitchen fire after consuming alcohol and, in the aftermath, pushed and locked the mother outside. The parties had a verbal and physical altercation involving the father’s family members, the police came and the mother voluntarily left the house. After separation, the father kept the child from the mother over a three-week period because he was worried she would remove him from the U.S. The parties reconciled but again had an altercation. The police report noted neither was credible. The mother resisted the return of the child on the basis of the exception in Article 13(b).

Office of the Children’s Lawyer v. Balev

The Office of the Children’s Lawyer (Office) appealed from the Ontario Court of Appeal decision setting aside a decision of the Ontario Divisional Court that set aside the application judge’s decision that granted the respondent father’s application for return of the children to Germany. The application judge concluded that the children’s habitual residence in Germany and thus ordered their return. Both children were born in Canada after their parents moved from Germany. The family then moved back to Germany. The Mother returned to Canada Office of the Children’s Lawyer v. Balev, [2018] S.C.J. No. 16 with the children to experience the Canadian school system. Fearing the non-return of the mother with the children after the school year, the father revoked his consent and brought the action under the Hague Convention concerning International Child Abduction (Hague Convention). The appeal was rendered moot because after the return of the children to Germany, the German courts granted sole custody to the mother.

Case Comment on OCL v. Balev

The long anticipated case from the SCC [Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (37250)] has arrived regarding the key issue of Habitual Residence and the defense under Article 13, where a child objects to returning to his or her habitual residence.

Andegiorgis v. Giorgis

On February 27, 2017, the respondent mother left Norway, where the parties had been living since 2014, and came to Canada with the parties’ 6-year-old child without telling the applicant father. The father immediately commenced an application for the return of the child to Norway pursuant to the Hague Convention. The mother argues that the Convention does not apply as the child’s habitual residence is Canada, not Norway, and the father has no custodial rights that would prevent her ability to move. In the alternative, if the Convention is found to apply, the mother argues that the child should not be returned to Norway because doing so would place the child at grave risk of harm, and because the child objects to being returned.

Director General, Department of Communities, Child Safety and Disability Services v. Timothy John Corfield

In this recent Australian case, the writer represented the father with respect to setting aside an ex parte order his wife secured in Alberta compelling him to return the parties four children from Australia to Alberta. Briefly, the parties had been living both in Alberta and Australia after their marriage. Three of the children were born in Canada and one was born in Australia. It was an unstable relationship. The mother was an exotic dancer, and the father primarily cared for the children. We were successful in setting aside the ex parte Alberta Order for the return of the children before the Australian Hague hearing. The father was successful in opposing the Mother’s Hague application for the return of the children to Alberta. The key issues for the Australian Court were Habitual Residence and Acquiescence. The Australian Court found that both parents, had mutually agreed for financial reasons (the father could not work in Canada) that the father could indefinitely travel with the children to Australia. This had the effect of changing the habitual residence of the children from Alberta to Australia. In addition the Court also found that the mother acquiesced in allowing the children to remain with the father in Australia. Facebook posts by the mother and her family were very instrumental in providing evidence to support the father’s position.

S.I. vs A.S.S.K.

The mother, Ms. I., brings this application for primary care and control of her son. The mother and the father, Mr. K., are divorced and live in Canada. The child is currently residing in Jordan with his paternal grandmother. The mother has had little access since July 2014.

R.M. vs J.S.

Family law — Custody and access — Considerations — Child’s preference — Offences and penalties — Child abduction — Hague Convention — Practice and procedure — Appeals and judicial review — Appeal
by mother from dismissal of her appeal from judgment refusing return of child allowed — Parties married and divorced in Israel…

J.P.R vs Y.M.S.

This is an application by the father, JPR, pursuant to the Family Law Act, S.A. 2000, c. F 4.5, s. 32 for a Parenting Order regarding his children, JP, age 14, and GR, age 12. The children’s mother, YMS, (JPR’s wife) asked the Court to decline to exercise jurisdiction in this matter and for child and spousal support, presumably on a temorary basis, until this matter is resolved.

Datta vs Datta

Civil litigation — Civil procedure — Appeals — Time to appeal — Extension of time — Application by father for extension of time to file notice of appeal dismissed — Parties had three children —
Family moved to St. Louis, Missouri during marriage — Upon separation, father returned to Toronto — Mother moved to Calgary…