H. (A.) v H. (F.S.) – wrongful removal of a child pursuant to the Hague Convention

This was a relatively quick decision made by Justice Kruzick, heard February 14th, a rather unfortunate day for hearing arguments related to the breakdown of a marriage. The matter was a successful application made by a father seeking the return of his child under the Hague Convention on the Civil Aspects of International Child Abduction [“Hague Convention”].

The court held that the child was wrongfully detained by her mother in Ontario and should be returned to Australia. The child at the heart of the matter was one year of age, born to a Canadian mother and Australian father while the parties resided in Ontario.

The fundamental issue for Justice Kruzick was determining which country would be considered the child’s habitual residence and would subsequently be the appropriate jurisdiction for deciding issues pertaining to custody and access. The court had the challenge of deciding whether the child was a habitual resident of Australia, where he had lived there only briefly, or Canada, which had been his home exclusively prior to the family’s 2012 relocation. Further complicating the matter was the mother’s claim that returning the child to Australia would result in placing the child in grave risk of harm or an intolerable situation.

The father’s position was that the trip to Australia was a permanent relocation, and that the child was habitually resident in Australia. The father argued that he had permitted his wife and child to travel to Ontario for the holidays, but had not consented to the permanent removal of the child from Australia. The mother in turn claimed that the father had consented to her leaving Australia with the child, and that the trip to Australia was a failed trial run. Representatives for the mother argued that Canada was where the child habitually resided.

In deciding whether the father had in fact acquiesced, Justice Kruzick looked at the subjective intention of the father, with the burden to disprove his intention resting upon the mother. The court found that the mother failed to meet the threshold for demonstrating acquiescence, meaning that the relocation was deemed to be against the father’s wishes.

In determining the child’s habitual residence, the court weighed the young age of the child and the brief period of time spent residing in Australia, but ultimately looked at the idea of settled intention to determine the issue. The court accepted the father’s evidence insofar as he left employment in Ontario with no request for a temporary leave, had made no application for permanent citizenship in Canada, and that the parties had sold their furniture and shipped their personal effects to Australia. Paired with the commitments made in Australia, (including lengthy cell phone contracts), this evidence supported a settled intention to reside in Australia. Subsequently, the child’s habitual residence was deemed to be Australia.

Before making a final decision concerning the return of the child to Australia, Justice Kruzick examined article 13(b) of the Hague Convention in relation to the mother’s claim of abuse. That article states that notwithstanding any other provisions in the Convention, the child need not be returned if the party opposing the return establishes that “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 court found no evidence of abuse, save for the novel allegations made by the mother two months prior. Justice Kruzick found that the correspondence between husband and wife was loving in character and that there was no indication of trouble in the relationship prior to the mother’s refusal to return with the child to Australia.

The court disposed of the matter by ordering that the child be returned to Australia, in the care of the mother, with custody and access to be decided by the jurisdiction of the child’s habitual residence.

Of note in the disposition is that the father was ordered to refrain from consuming any alcohol or drugs within 48 hours of spending time with the child, an element of the order that suggests maybe Justice Kruzick found some substance in the mother’s claim of a risk of harm.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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