Habitual residence of a child
Children Ordered To Return To Kuwait After Being Unlawfully Removed
Although modern communication might make the world seem smaller in many ways, it’s still a very large place with sovereign nations making decisions that best suit their interests. Many nations are signatories of the Hague Convention, a system that seeks to protect children in cases of international custody crises. But not every country has signed on to the Hague Convention. What happens when an international custody dispute arises between countries outside of the Hague Convention’s jurisdiction? That was the case in a recent decision from the Ontario Superior Court of Justice.
A mother flees Kuwait
The mother and father were married in Kuwait in 2008. They had three children before separating in 2018. The parties had a separation agreement that saw the father with weekly access to the children. However, the mother fled Kuwait with the children on May 14, 2018.
The mother and children entered the United States on visas and made their way to the Canadian border where they made refugee claims.
The father sought an order from Ontario courts recognizing the order from 2018 in Kuwait. He did not seek custody of the children, rather a return to the status quo. The mother admitted that the children’s habitual residence is Kuwait and that amongst other things, she and the father were involved in a family court dispute and she removed the children from the country without the father’s approval.
Mother seeks protection from harm
The mother asked the court to assume jurisdiction of the matter because she believed the children would suffer serious harm if returned to Kuwait. She said the father was sexually and physically abusive towards her during their marriage and physically abusive to the children. She added that the legal because the legal system in Kuwait does not protect women and children.
The court noted that the Hague Convention did not apply to the matter since Kuwait is not a signatory of that instrument. However, the province’s Children’s Law Reform Act gives courts jurisdiction where a child is physically resident in Ontario and the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if removed from Ontario.
Risk of serious harm?
After hearing the mother’s testimony, the court found no reliable evidence that the mother or the children would suffer serious harm by the father if returned to Canada. The court wrote, “the mother’s manner of testifying also impacted her credibility. When confronted with inconsistencies, she became querulous and argumentative. When questioned as to inconsistencies or significant omissions in her evidence, she frequently gave vague, non-responsive answers.”
In addition, an expert on Sharia law testified that Kuwait is one of the more “progressive” Muslim countries, adding that violence against women and children is taken seriously there. The expert stated that Kuwait has a fairly modern system of laws aimed at protecting children, women, and minorities.
The court found that the evidence left it without the jurisdiction to deal with the children in Ontario and that they had been wrongfully removed from Kuwait by the mother. The mother and children were ordered to return to Kuwait.
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