Hague Convention: Crnkovich v. Hortensius

The issue brought before the Ontario Superior Court of Justice in this particular case was that involving the broad issue of whether the provisions contained within The Hague Convention applied to an eleven year old boy who was brought to Canada by his mother from Indiana, USA. More specifically, the Court was asked to determine whether Article 13 of the Hague Convention applied in this case to permit the child to remain in Canada notwithstanding that he had been wrongly removed from Indiana contrary to an Order of the Superior Court of Indiana. The portion of Article 13 relevant in this particular case permits a Court to refuse to order a child to return to his or her place of habitual residence where the child “objects” to being returned and where he or she is of an age and maturity that it is appropriate to take his or her views into account.

The parties were the “loving and competent” parents of an eleven year old boy. During the parties’ marriage, the family resided in the USA. The father is an American citizen, the mother is Canadian, and the son enjoys dual citizenship. Post-separation and pursuant to a Court Order, the parties shared joint custody of the child, with his primary residence being with the mother. The parties subsequently engaged in protracted litigation in the Indiana Superior Court over the issue of whether the mother would be permitted to relocate with the child to Ontario. The Court decided against the relocation. One month after the decision was handed down, the mother came to Ontario, bringing her son with her, to renew her driver’s licence. Upon her return to the USA, the mother encountered admittance problems at the border. Nevertheless, she was granted a 7-day humanitarian pardon to re-enter the United States. During this 7-day period the father obtained a temporary order restraining the mother from taking the child to Canada without his consent. When the mother was ordered deported from the United States, in violation of the Indiana Superior Court Order, she brought the child to Ontario to reside. Shortly thereafter, the father brought this Application in Ontario pursuant to the Hague Convention to have his son returned to the United States.

The mother argued that the removal of the child was not wrongful, and even if it was, the child should not be returned to the USA on the grounds that the child objected to the return and was mature enough to make this decision. The mother brought forward evidence from the child’s physician purporting that the child was happy with his mother and was mature enough to make this decision. The mother further argued that the child was prospering in Ontario, as he had done exceptionally well in school, was involved in extra-curricular activities and had made a number of close friends. Further, due to the deportation Order from the USA, the mother argued that she would be severely prejudiced in presenting her case in the USA if the Indiana Court was found to have jurisdiction over the matter. As a result, the mother was of the view that the father’s motion should be dismissed, and that she and her son should be permitted to reside together in Ontario.

After hearing the arguments, the court concluded that “it was clear that [the child] was habitually resident in Indiana immediately before his removal to Ontario”, that there was no question that the child was wrongly removed from Indiana by the mother, and that therefore, the Indiana Courts had the jurisdiction to rule on matters of custody, access and mobility.

Once a finding of wrongful removal is made, the Court must order the return of the child forthwith, subject to three exceptions outlined in Article 13. The exception most relevant in this particular case is the one involving the child’s wishes and objections to being returned. Although the Ontario Court decided that the evidence presented before it involving the child’s maturity was not substantial, it was prepared to accept that this portion of the exception was met. However, the court was not so satisfied when it came to the portion of the exception involving the “objection” requirement. To meet the “object” criteria, according to the Court, “it must be shown that the child displayed a strong sense of disagreement to returning to the jurisdiction of [his/her] habitual residence…it must be something stronger than a mere expression of preference”. The test was not met in this particular case. Since there was only “scant” evidence presented to the Ontario Court on the issue of the child’s alleged objection to returning, and since according to the Court only a mere preference was offered by the child, it was unable to conclude that the child “objected” to his return to the USA. The evidence seemed only to suggest that the child would be content to stay in Ontario, not that he objected to being returned to Indiana.

As a result of the Court’s observations and reasons, a declaration was made that the child was wrongly removed from Indiana and was being wrongly retained in Ontario. The consequence of this being that the child would be returned to his habitual residence in Indiana after he completed his last day of the Fall term at his school in Ontario.

This Post Has 2 Comments
  1. As people increasingly become international citizens, issues of jurisdiction seem to be arising more often. This decision is interesting for its application of Article 13 of the Hague Convention. I believe that the Ontario Court made the only decision it could with respect to the child’s illegal removal from Indiana. What is noteworthy about this case is the use of the Article 13 defence to the illegal removal of a child. It gives a clear message to litigants that if they want to take advantage of these defences there must be clear and persuasive evidence before the court. It is hard to say whether the decision to return the child to Indiana is the correct one without having the benefit of reviewing the evidence submitted, however, what is clear to me is that court likely made the right decision. The Court must set a high evidential standard of what is required to make a successful Article 13 claim so that future litigants know they cannot easily illegally remove children from their habitual residence and later have that move sanctioned by the Court. Illegally removing a child from their habitual residence and moving them to a different country has major impact on all parties involved and especially the non-offending parent who finds themselves with restricted access to their child. This is why I believe that asking for something more then ‘scant’ evidence is completely fair.

  2. This case is a very interesting example of the Application of the Hague Convention and the issues of jurisdiction that sometimes arise in family litigation. I do not necessarily agree with the Court’s ruling in this case, however, I do understand why they made the decision that they did in the end. On the issue of whether or not the child had been wrongly removed from Indiana, I agree that he was. I appreciate the mother’s argument that she would meet severe prejudice if her matter were referred back to Indiana, however, to permit such an argument to succeed would be akin to allowing litigants to “jurisdiction shop”, and this cannot be allowed. When it comes to the question of the child’s objections, I disagree with the Court. As I was not privy to the evidence in this case, I cannot comment on the accuracy of the Court’s findings that the child was mature enough to express his views on his place of residence. However, I do believe that a thirteen year-old child is generally able to express such a preference. I also feel that the child’s objections should have been taken more seriously. It is unclear what a Court requires when the Hague Convention states that the child must do more than merely “object” to returning to his or her place of habitual residence. In this case, the child provided sound reasoning for his desire to remain in Ontario, and took steps to speak out in Court on the subject. In my opinion, this is more than a “mere objection”. In this case, the Court underestimated the child’s actions, taking away his voice in this matter. However, as the matter will be dealt with in the Indiana Courts, perhaps the child’s wishes can be taken into account at that point.

Leave a Reply

Your email address will not be published. Required fields are marked *