When a child is wrongfully removed from their habitual residence, it is generally in their best interests to be returned home where they have their closest connections. Parents who relocate and remove a child from their home jurisdiction and away from their other parent have often been found to be pursuing a harmful self-help remedy.
Since the courts discourage international abductions by a parent and prevent the parent from gaining an advantage, the Hague Convention states that prompt action must be taken in proceedings to return the child. So, what happens when there is a delay and the child establishes connections to the new jurisdiction?
Canada is a signatory to the Hague Convention on the Civil Aspects of Child Abduction, which is incorporated into Ontario law by the Children’s Law Reform Act. The Convention aims to ensure the prompt return of children who have been wrongfully removed or retained in a contracting jurisdiction. This legislation also ensures that parenting and decision-making rights, which are granted under the law of a contracting jurisdiction, are respected in the other contracting jurisdictions.
In the case of Office of the Children’s Lawyer v. Balev, the Supreme Court of Canada noted that an order to return a child to their habitual residence is merely an order to restore the status quo that existed before the wrongful removal of the child. The objective is to “return the child to the jurisdiction which is most appropriate for the determination” of parenting issues.
In Bhadauria v Côté, the Superior Court of Justice explained that child abductions are considered urgent matters. In this case, despite the applicant having parenting time, the respondent removed the child from Canada without notifying the applicant. The Court deemed this an egregious case of a parent exercising a self-help remedy. Instead of proactively raising the issue of relocation before the Court, the respondent first moved to France with the child and then asked the Court to authorize her actions after the fact. Justice Kaufman reminded the parties that self-help actions must be discouraged and decisions must be made in the child’s best interests. In this instance, the Court acknowledged that the respondent’s actions suggested a lack of regard for the applicant’s role in the child’s life and the respondent was ordered to return the child to Ontario.
The case of Leigh v. Rubio raised the issue of resolving what should happen when a child is wrongfully removed to Canada but develops ties to the new country while the court proceedings are pending. In this case, the appellant was the father of a nine-year-old boy who had lived in Peru until the mother took him to Canada. The father had shared parenting rights over the child however, the mother removed the child in violation in a Peruvian court order.
The father asked the Ontario Court for the child’s return under the Hague Convention. However, it took one and a half years before the Court rendered a decision. The Court confirmed the child’s habitual residence was Peru. Still, it dismissed the application to return the child based on an exception to the Convention’s mandatory return, finding there was a grave risk of physical or psychological harm to the child if he was returned. This decision was appealed to the Ontario Court of Appeal.
Article 11 of the Convention requires contracting states to “act expeditiously in proceedings for the return of children.” In Office of the Children’s Lawyer v. Balev, the Court determined that the prompt return mechanism served three objectives:
A hearing under the Convention is intended to return a child, who has been wrongfully removed, to the jurisdiction most appropriate for determining parenting and decision-making matters.
Article 13(b) of the Convention does set out an exception to the mandatory return of an abducted child if the parent opposing the return can establish a “grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Yet, the Court explained that this is a narrow exception and it is not intended to be an in-depth analysis of the parties’ history or to re-do foreign court proceedings.
In the case of Leigh v. Rubio, the Court reviewed the mother’s allegations year by year and heard extensive evidence that required translators and interpreters. All of these intricate steps contributed to the delay and were not required. Office of the Children’s Lawyer v. Balev indicated that judges should expedite proceedings to ensure they are completed expeditiously. For the Court, even an allegation under 13(b) does not outweigh the court’s obligation for a prompt resolution. Instead, the Convention requires “a focused analysis of the requirements for return and any possible exceptions.”
When there is delay in proceedings, the parent who has wrongfully removed a child gains an advantage. As the Court noted, the child begins to develop ties to the new jurisdiction and appellate review is impeded. In this case, the child had been living in Canada for three years, which was a third of his life, and he had become estranged from his father.
The Court of Appeal decided that it could not remedy the delay, as a new hearing would simply involve further delay. Therefore, an order requiring the child to return to his habitual residence would not be in the child’s best interests. Instead, the parenting of the child could still be determined, and the Court found that a new hearing should proceed due to gaps in the application judge’s analysis.
In determining grave risk under Article 13(b), the judge improperly accepted the mother’s evidence as fact and failed to address the discrepancies between her findings and the earlier findings of the Peruvian courts. The difficulties in the judge’s analysis meant that the parenting application should be considered afresh.
The compassionate family lawyers at NULaw in Toronto Disputes relating to child access and parenting time issues are not uncommon in family law. In cases where mobility and relocation become an issue, our lawyers work quickly to ensure that the appropriate processes are commenced and the matter is resolved efficiently. To schedule a confidential consultation with a member of our family law team, reach out to us online or call us at 416-481-5604.