|
Family - Hague Convention. Thomas v. Thomas
In Thomas v. Thomas (Ont CA, 2024) the Ontario Court of Appeal allowed a Hague Convention child custody appeal:[1] Mr. Thomas appeals from the order of the application judge that dismissed his application under the Convention of the Civil Aspects of International Child Abduction ("Hague Convention"). At the conclusion of the hearing, we allowed the appeal and made an order that the parties’ son be returned forthwith to his habitual residence in Balch Springs, Texas. We said our reasons would follow and I now provide those reasons.
....
[14] While the application judge correctly cited the applicable legal principles relating to an application under the Hague Convention, it is clear to me that she failed to properly apply those principles. In particular, she failed to understand the degree of proof that is required for a proper determination of whether the acquiescence exception in Article 13(a) could be relied upon.
[15] I recite certain principles that apply in Hague Convention cases as they relate to this case. I draw those principles from earlier decisions of this court including Katsigiannis v. Kottick-Katsigiannis (2001), 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 and Ibrahim v. Girgis, 2008 ONCA 23, 291 D.L.R. (4th) 130. Those principles include:i. The object of the Hague Convention is to deter abductions of children and to secure the prompt return of children where abductions occur;
ii. “consent” and “acquiescence” as used in Article 13(a) should be given their ordinary meaning;
iii. Acquiescence is a question of the actual subjective intention of the wronged parent;
iv. The onus rests on the abducting parent to establish acquiescence by the objecting parent;
v. Acquiescence must be established on clear and cogent evidence;
vi. To be established, it must be shown that the acquiescence was unequivocal;
vii. The standard for finding acquiescence is high. ....
[23] There are obvious problems with this finding. For one, citing the balance of probabilities standard is inconsistent with existing authorities that establish that the “standard for finding acquiescence is high”: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183, at para. 50. It is also inconsistent with the requirement that there be clear and cogent evidence of acquiescence. Clear and cogent evidence does not require a balancing of evidence of the type envisaged in the balance of probabilities standard. The clear and cogent evidence standard is also not established by a finding that the appellant “implicitly consented”.
[24] Before concluding, the application judge proceeds to fault the appellant, not once but twice more, for never demanding that Isaiah be returned to Texas, once again demonstrating that she has reversed the onus of proof.
[25] As I have already alluded to, the application judge never addresses, at any point in her reasons, the requirement that acquiescence is a question of the actual subjective intention of the objecting parent. On this point, I repeat the test referred to in Katsigiannis, at para. 48, that “[a]cquiescence is a question of the actual subjective intention of the wronged parent, not the outside world's perception of his intentions.” The application judge never resolves how the actions of the appellant, even as characterized by her, could be seen to be consistent with a finding that he subjectively intended that Isaiah would remain in Toronto.
[26] I contrast this case to cases where acquiescence has been established. For example, in Jackson, the court observed that, after the relocation of the child, the father had never telephoned to ask about his son. Here, the appellant was not only in immediate contact with the respondent, but he also consistently communicated with Isaiah up to the hearing of the application. The father in Jackson missed several opportunities to visit his son. Here, the appellant traveled to Toronto to see his son as earlier described. The court found in Jackson that the father took no real interest in his son’s life. The situation here is the polar opposite of that finding.
[27] I return to the objective of the Hague Convention. It is to secure the prompt return of abducted children. The Convention establishes “a presumption in favour of ordering the child’s summary return under Article 12”: Ibrahim, at para. 21. The application judge’s decision does not fulfill the objective of the Hague Convention nor does it accord with that presumption. . Dieffenbacher v. Dieffenbacher IV
In Dieffenbacher v. Dieffenbacher IV (Ont CA, 2023) the Court of Appeal comments on the Hague Convention regarding family law, here in a motion to stay pending appeal:[11] This motion must also be considered through the lens of the Hague Convention. As Benotto J.A. stated in J.P.B. v. C.B., 2016 ONCA 996, at para. 33:Applications pursuant to the Hague Convention are to be dealt with expeditiously. Continuing delays frustrate the purpose of the legislation, favour the non-complying parent, and postpone the determination of the children's best interests in the country where they are habitually resident. [12] I agree with Hourigan J.A.’s comment in Zafar, at para. 26:I adopt the reasons of Roberts C.J. of the United States Supreme Court in Chafin v. Chafin (2012), 133 S.Ct. 1017, at p. 1027, as quoted in Balev in para. 35:In cases in which a stay would not be granted but for the prospect of mootness, a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal has little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention's mandate of prompt return to a child's country of habitual residence. [Emphasis added.] [13] To the same effect see Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 33, where the Supreme Court states: “A clear purpose of multilateral treaties is to harmonize parties’ domestic laws around agreed-upon rules, practices, and principles. The Hague Convention was intended to establish procedures common to all the contracting states that would ensure the prompt return of children”, as the Hague Convention’s preamble stipulates. . Parmar v. Flora
In Parmar v. Flora (Ont CA, 2022) the Court of Appeal considered the international family law Hague Convention and issues of child residence:(1) The principles
Purpose of the Hague Convention
[20] The purpose of the Hague Convention is to secure the prompt return of a child wrongfully removed or wrongfully retained. Article 1 provides:The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Wrongful removal or retention
[21] Not every removal or retention is wrongful. As per art. 3 of the Hague Convention, the removal or the retention of a child from her habitual residence is wrongful when:a) it is in breach of rights of custody attributed to a person … 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. [22] A removal or retention is wrongful if the child was habitually resident in the country immediately before the alleged wrongful removal or retention. Therefore, habitual residence is central to the Hague Convention because it defines when a removal or retention is wrongful: see Ludwig, at para. 22.
Habitual residence
[23] The approach to habitual residence was changed in 2018 when the Supreme Court of Canada issued its decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] S.C.R. 398. The parental intention model previously used was replaced with a hybrid model. The hybrid model considers parental intention, but also the circumstances of the child.
[24] This court’s decision in Ludwig, incorporating the changes from Balev, outlined a two-step process to determine habitual residence. At the first stage, the court is to determine the date of the alleged wrongful removal or retention. At the second stage, the court is to look to all the circumstances, including parental intention and the circumstances of the child, to determine the “focal point of the child’s life”, having regard to the child’s links to both countries and the circumstances of the move from one country to the other. The application judge’s conclusion is entitled to deference. . F. v. N.
In F. v. N. (SCC, 2022) the Supreme Court of Canada considered a child abduction by a parent from the UAE (not a Hague Convention signatory) to Ontario. The case bears heavily on the extra-provincial matters provisions of the Childrens Law Reform Act, and balances the dominant 'best interests' of the child doctrine against respect for foreign jurisdictions - particularly whether the cultural differences in foreign jurisdiction child protection law can be weighed towards best interests [para 49-98].
. Office of the Children’s Lawyer v. Balev
In Office of the Children’s Lawyer v. Balev (SCC, 2018) the Supreme Court of Canada canvasses the nature and function of the Hague Convention [the 'Convention on the Civil Aspects of International Child Abduction']:A. The Hague Convention
[22] The Hague Convention was concluded on October 25, 1980. With more than 90 contracting parties, it ranks as one of the most important and successful family law instruments completed under the auspices of the Hague Conference on Private International Law. Canada has been a party from the beginning. The Hague Convention is implemented by legislation in every province and territory.
[23] 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. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.
[24] The Hague Convention is aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence: see Article 1; Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at pp. 579-81. The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.
[25] Prompt return serves three related purposes. First, it protects against the harmful effects of wrongful removal or retention: see R. Schuz, The Hague Child Abduction Convention: A Critical Analysis (2013), at p. 96; E. Gallagher, “A House Is Not (Necessarily) a Home: A Discussion of the Common Law Approach to Habitual Residence” (2015), 47 N.Y.U.J. Int’l L. & Pol. 463, at p. 465; Thomson, at p. 559; Re B. (A Minor) (Abduction), [1994] 2 F.L.R. 249 (E.W.C.A.), at p. 260.
[26] Second, it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody: see E. Pérez-Vera, “Explanatory Report”, in Acts and Documents of the Fourteenth Session (1980), t. III, Child Abduction (1981),[2] at p. 429; see also W. (V.) v. S. (D.), 1996 CanLII 192 (SCC), [1996] 2 S.C.R. 108, at para. 36; Gallagher, at p. 465; A. M. Greene, “Seen and Not Heard?: Children’s Objections Under the Hague Convention on International Child Abduction” (2005), 13 U. Miami Int’l & Comp. L. Rev. 105, at pp. 111-12.
[27] Finally, prompt return is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: see Schuz, at p. 96; Gallagher, at p. 465.
[28] The heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised but for the wrongful removal or retention. Crucially for the purposes of this appeal, the concept of habitual residence is not defined in the treaty.
[29] If the requirements of Article 3 are established, Article 12 requires the judge in the requested state to order “the return of the child forthwith” unless certain exceptions apply. These exceptions can be summarized as follows:(1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));
(2) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));
(3) The child of sufficient age and maturity objects to being returned (Article 13(2));
(4) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,
(5) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12). [30] Only one requirement of Article 3 is challenged in this case — whether the children were habitually resident in Germany at the time of the wrongful retention. And only the third exception remains relevant — the children’s alleged objection to being returned to Germany.
|
