We have blogged about the Hague Convention, an international treaty in which participating countries agreed to a standard that addresses the wrongful removal or retention of a child. As a signatory to the Hague Convention, Canadian courts must resolve applications concerning such unlawful removals or retentions quickly and efficiently.
As many people involved with the courts know, things don’t always move quickly in the judicial system. In a recent decision from the Court of Appeal for Ontario, we see how a delay in the courts can impact the ability of a parent to bring a child back to their habitual residence after being unlawfully removed.
Mother leaves Peru with child
The applicant in the matter was the father of a nine-year-old boy. The child had lived his entire life in Peru until 2019, when the mother left the country with him to come to Canada. This was done in violation of a court order requiring the child to stay in Peru.
Upon the mother’s leaving the country, the father applied to Ontario courts for the child’s return to Peru pursuant to the Hague Convention, which states,
“The removal or the retention of a child is to be considered wrongful where
- a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
It wasn’t until 18 months later that the father received a ruling from a court, though it was with mixed results. The court agreed that the child had been wrongfully removed from Peru, but dismissed the father’s application under Article 14(b) of the Hague Convention, which states that the return of a child need not be ordered if the court is satisfied “there is 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.”
The judge arrived at this conclusion after hearing the mother’s evidence in the trial, though he failed to consider a previous decision from Peru which placed findings of violent conflict on both parents.
2.5 years pass before appeal is heard
The father appealed the application judge’s decision. By the time the matter made its way to the Court of Appeal, more than 2.5 years had passed since the child’s removal from Peru. The application was first filed in March 2020, with the first hearing taking place over 33 non-consecutive days, concluding in February 2021. Reasons for the decision were delivered on June 21, 2021, just over 15 months after the application was filed. Along with the judge’s decision related to remedy, the father appealed because of the delays the process experienced.
The court stated that the Hague Convention aims to address these situations promptly. In fact, the Supreme Court of Canada wrote in a 2018 decision on the importance of this principle, stating,
The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted, and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Duelling custody battles waged in different countries may follow, delaying the resolution of custody issues. None of this is good for children or parents.
However, the court noted that the Hague Convention allows for a narrow exception to a prompt return if a judge feels that an exploration of possible harm to the child is needed. When a judge determines this is needed, the judge is responsible for doing so. The court found that the application judge was reasonable in taking on an investigation, but noted the length of the delay, even with COVID-19, could not be justified.
The court explained the impact a delay has on a child, notably in giving the child an opportunity to develop ties to a new jurisdiction. By this point, the child has been living in Canada for nearly three years, about one-third of his life. These are also formative years; he is now estranged from his father.
The court was sympathetic to the father’s case but noted that it was not in a position to remedy the delay. In addition, the court wrote that any credibility findings made possibly in error by the application judge would not amount to enough to warrant their decision being overturned. The court wrote that a new hearing would only further the delay, and as such, a return order would not be in the child’s best interests and denied the father’s appeal.
Contact the Family Lawyers at Howie Johnson Barristers & Solicitors in Windsor for assistance with Child Relocation Matters
If you are a recently separated parent, you might have questions about where your child or children will live, particularly if the other parent has or intends to move to another province or country. To speak with an experienced family law lawyer about matters related to relocation or any other family law matter, reach out to the team at Howie Johnson Barristers & Solicitors. We can be reached online or by phone at 519-973-1500. We serve clients in Windsor, Essex Country, and the surrounding region.