Despite how large the world can be (even with technology making it seem smaller every day ) countries still demonstrate ways to work together for common goals. One of the results of this is the Hague Convention on the Civil Aspects of International Child Abduction (“The Hague Convention”). It is an agreement between over 100 countries on how to handle situations where a child is unlawfully removed by a parent from one member country to another. We’ve blogged about the Hague Convention before, but we haven’t had a chance to discuss how courts deal with situations where the Hague Convention does not apply because the other country is not a signee. This was the situation in a recent decision from the Ontario Superior Court of Justice.

From Kuwait to Canada

The parents involved in the case were married in Kuwait in 2008. They separated on March 14, 2018. They had three children together prior to their separation. On March 17, 2018 the Hawally Family Court in Kuwait issued an order establishing custody and visitation rights for the children and parents. The order saw the mother responsible for primary care of the children.

On May 14, 2018 the mother left Kuwait with the children and headed to the United States. Once there she and the children made their way to Canada where they made refugee claims.

The mother and children were living with family in Ontario when the father turned to the Ontario courts to have the children returned to Kuwait.

The mother’s claims

The mother said she was worried about the safety of her and the children if they were made to return to Kuwait. In March, 2018, an event described by the court as a “significant domestic conflict” occurred involving both parents and extended family. The police were called and their children were witness to the events. She said that there was a risk of violence if they were to return.

The mother said the gather was sexually and physically abusive towards her and was also physically abusive towards the children.

The father denied the mother’s claims of abuse. His lawyers stated that he would not pursue kidnapping charges against the mother if she were to return to Kuwait, and stated he did not wish to have them removed from their mother’s care.

The Hague Convention does not apply

In cases where both countries involved as signatories to the Hague Convention, there would be processes in place to return the children home. However, since that is not the case here (Kuwait is not a Hague Convention member) the courts turned to the Children’s Law Reform Act. The Act gives Ontario courts jurisdiction where a child is physically present in the province and may face harm if returned home.

In this case, the court determined the mother had not provided reliable enough evidence to demonstrate that the children would be subject to abuse if returned home. The court noted that the mother was inconsistent with her testimony and became argumentative when confronted with this. In addition, an expert on Sharia law (which is in place in Kuwait) stated that Kuwait is a very “progressive” Muslim country and has modern laws to protect women and children. As a result, the mother and children were ordered to return back to Kuwait.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. We provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.

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