Can A Judge Force A Parent To Take Children Back To Their Home Country Even If There Is A Risk Of Harm From The Other Parent?

Written on behalf of Arbesman Hamilton LLP

The summer travel season can be complicated for divorced or separated parents.  Planning vacations can include everything from the coordination of schedules to the signing of consent forms for travel outside of the country. The Ontario Court of Appeal recently heard a case involving another potential complication – a separated parent taking children on holiday and deciding not to return to Canada.

A vacation turns into a move

The mother travelled to Canada with her two young children, obtaining permission from the children’s father, to whom she was married. While in Canada the mother informed the father that she was ending the marriage and planned to stay in Ontario. The father responded by filing an application under the Hague Convention, seeking to have the children returned to England because they were wrongfully removed from their home country. The relevant Article of the Hague Convention was incorporated into Ontario’s Children’s Law Reform Act (the Act).

The mother is made to return home

At trial, the judge agreed that the children had been wrongfully removed from England. The wife had conceded that the children did habitually reside in London, England. However, she argued against returning the children on the basis of another Article of the Hague Convention, stating the father poses a grave risk of physical and psychological harm to them. The father denied the allegations. The trial judge declined to conduct a risk analysis in relation to the mother’s allegations, stating “I am not to determine best interests of the children; only jurisdiction. In any event, on affidavits alone, I cannot determine who is telling the truth about (the father’s) conduct. That is a matter for the English courts.”

The trial judge ordered the wife to return to England by December 1, 2017. If she failed to do so the father would be granted sole custody of the children and could take them back to England himself. Any matters of custody were to be determined in England.

The mother obtained an order from the Court of Appeal, staying the order until the appeal’s decision was issued. However, she returned voluntarily on December 17, 2017. A hearing in England was scheduled for May 10, 2018 in order to determine whether the mother could return to Canada with the children.

The Court of Appeal heard the case on March 28, prior to the court date scheduled in England. While the mother was not seeking a new trial in Canada, but did want the courts to address the issues around the risk of harm. The mother submitted that the trial judge made two errors. The first was ordering the mother to return to England with the consequence of failing to do so resulting in the father receiving sole custody. The mother submitted the second error was the trial judge’s refusal to determine whether the children were at grave risk of serious harm.

Did the trial judge err in requiring the mother to return to England or lose custody of her children?

The court of appeal ruled the trial judge failed to prioritize the children’s best interest by requiring the mother to return to England. As a result, court determined the trial judge was without jurisdiction to order the mother to return to England with her children.

Did the trial judge err in refusing to determine if the children were at grave risk of serious harm?

The court determined that Article 13(b) of the Hague Convention required the trial judge to consider the possibility of grave risk of serious harm. The mother had submitted “the threatening, abusive and intolerable behaviour towards the [mother] by the [father], and drinking and smoking habits of the [father] reflects inability to create a safe environment free of danger for the children.” She added that the father is physically abusive, verbally abusive, and financially controlling. In writing its decision, the court referenced a 2008 decision stating that a grave risk of harm to the mother can constitute a risk to children as well.

The court ordered the original decision to be set aside. The court stated the English courts could determine the issues between the parties, including whether the mother could return to Canada with the children.

At Arbesman Hamilton LLP we approach issues of divorce, separation, custody, and access with compassion and experience. We understand the difficulties families endure during these times and aim to make the process as easy as possible to our clients by providing outstanding legal service and ensuring your rights and interests are protected throughout the process. Please call us at 416-481-5604 or reach us online to schedule a consultation today.