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The Hague Convention protects children from being wrongfully removed from their country of habitual residence by one parent without the other’s consent. The Convention enables the child’s prompt return by restoring the status quo that existed before the child’s removal. This prevents one parent from unilaterally changing the child’s residence. However, there are exceptions if the wronged parent subsequently acquiesces to the child’s removal. A parent will need to take some action to restore the child to their habitual residence, or else courts might conclude they have accepted the child’s removal.
Hague Convention Ensures Prompt Return of Children
In Thomson v. Thomson, the Supreme Court of Canada examined the Convention’s main objective. Justice La Forest explained that it was intended to “protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.” Consequently, courts have found that maintains a presumption in favour of ordering a child’s return. However, there are some exceptions to the mandatory return of children that have been wrongfully removed. In Ibrahim v. Girgis, the Ontario Court of Appeal accepted that these exceptions were intended to have a limited scope and that the Convention’s drafters expected a “restrictive” interpretation. Likewise, in M.G. v. R.F., the court warned that an expansive view of the exceptions would compromise its efficacy to “dissuade parents from illegally removing their children from one country to another.”
Article 13 of the Convention contains an exception, stating that “the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
- the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.
In Ibrahim, the court noted that the Convention requires the return of a child who has been wrongfully removed or retained. However, under Article 13(a), the state is not bound to order the child’s return if the aggrieved parent acquiesces. Consequently, the decision not to order the return of a child is discretionary.
Court May Not Order Child to be Returned if Parent Acquiesced to the Removal
While the Convention’s Article 13(a) refers to a party acquiescing to a child’s removal, the term is not defined. In Katsigiannis v. Kottick-Katsigiannis, the court considered the term’s meaning and found that it should be given its ordinary meaning, noting that “consent” and “acquiescence” are related words. “Consent ” is agreeing to something, such as removing children from their habitual residence. “To acquiesce” is to agree tacitly, silently, or passively to something.” The court found the focus needed to be on the subjective intention of the parent and that to find acquiescence, there needed to be actual consent to a child’s removal “based on evidence falling short of actually stated consent.” Therefore, acquiescence could be present based on a parent’s words or conduct establishing the acceptance of the child’s removal or retention.
The party alleging that the objecting parent acquiesced to the child’s removal bears the burden of proof to establish that Article 13(a) applies and that there was acquiescence. The objecting parent has no burden to show the opposite. This required the party to show some conduct by the other parent that was inconsistent with their seeking the return of the child to their habitual residence. Also, there is a high threshold for finding acquiescence. The court stated that to trigger the Article 13(a) defence, “there must be clear and cogent evidence of unequivocal consent or acquiescence.”
Judge Considers Parties’ Text Messages to Gauge Intent
Villarreal v. Kelly shows how courts will consider parents’ communications when assessing their intentions. In this case, the mother signed a travel letter permitting the child to cross international borders so that she could visit family in Canada. The mother agreed to the child’s visit, but the father was unwilling to return the child, and the mother sought the child’s return to Costa Rica under the Convention.
The child’s habitual residence was Costa Rica before she came to Sault Ste. Marie to visit her grandmother. The father alleged that the parties agreed that the child would reside with him in Ontario for at least one year. The father submitted a series of text messages the parties exchanged, which he claimed showed their agreement to have the child reside with him in Ontario. However, the mother claimed the messages referenced the duration of the child’s trip and not an agreement to move the child’s residence. The mother pointed out that the child arrived in Canada with limited clothing and few personal belongings. There were other indications that the child’s travel was a trip for a limited duration rather than a long-term move. The travel letter indicated the child was travelling to “visit family.” Also, the parties’ text messages suggest they had not formalized intentions or agreed on the length of time the child would stay in Sault Ste. Marie. While the child was in Ontario, one of the mother’s messages appeared to give her consent to have the child finish the school year in Canada. However, the judge accepted that this concession was a negotiation tactic the mother used to secure the child’s return. It was clear that the father pressured the mother and used abusive tactics and that the mother gave this concession to bring some finality to the situation. But the judge cited Katsigiannis and found this was not acquiescence by the mother since it was made in the face of the father’s coercion. Overall, the parties did not agree to change the child’s habitual residence, and the Convention applied to have the child returned to Costa Rica.
Court Considers Parent’s Delay in Seeking Child’s Return
In Ibrahim v. Girgis, the trial judge concluded that the father had acquiesced to his son’s retention and declined to order the child to return to Florida. However, on appeal, the court concluded that the judge had misapplied the concept of acquiescence. The Court of Appeal determined that the father’s eight-month delay between the mother’s failure to return the child and the father’s commencing proceedings under the Hague Convention could not, without more, constitute acquiescence. First, Article 12 of the Convention gives aggrieved parents one year after the date of wrongful removal or retention to apply for their child’s summary return. And even after one year has passed, the return rights are not extinguished; “the return mechanism is merely softened, with the abducting parent given a chance to override mandatory return upon proof that the child has “become settled in its new environment.” For the court, acquiescence could not be inferred solely from delay if the application was filed within eight months. Moreover, Article 12’s one year window is not a strict limitation period, so “such delay cannot by itself constitute clear and cogent evidence of conduct … which is inconsistent with the summary return of the children to their habitual residence”.
The court also suggested that there were good reasons not to deny parents the benefit of the one-year window that Article 12 provided. Parents could be unaware of the Convention and the rights and remedies it contains. Additionally, a parent might attempt reconciliation or settle the dispute outside the courtroom. Finally, the court warned that a broad interpretation of acquiescence would be inconsistent with the Convention’s purpose to secure the prompt return of abducted children.
There is a High Threshold to Find Acquiescence
There is a high threshold for finding that a parent has acquiesced to the removal of a child since courts do not want to encourage parties to take unilateral actions and relocate children away from their place of habitual residence. In such instances, the goal is to secure the prompt return of children.
Windsor Family Lawyers Assisting Parents With International Family Matters
The family lawyers at Johnson Miller Family Lawyers in Windsor focus exclusively on family law matters and bring a strategic approach to navigating international family issues. If you have concerns, our lawyers can help you with solutions tailored to your unique circumstances. Please contact the firm at 519-973-1500 to arrange a consultation or visit us online.
