The Costs of Family Law

Wentzell-Ellis v. Ellis (2010), 2010 CarswellOnt 4016 (Ont. C.A.)

This case is a decision based on an Application that was brought by the father in this case. The Mother was a Canadian citizen in this case, but she lived in England with her husband and daughter. In 2009 the Mother and the daughter left England for Canada for a vacation. It was later revealed that the mother claimed to have left England because of the father’s alcoholism and abuse. The father brought the Application when the mother did not return to England and argued that the daughter was being wrongfully held in Canada as outlined in the Hague Convention on the Civil Aspects of Child Abduction. The Father’s Application was dismissed as the Court Ordered that the child did not have to be returned to England under the Hague Convention as she was considered to be an habitual resident of Ontario, and that it would be dangerous to return a child to an environment where she would be at risk of harm from the Father.

When determining whether the child should be returned to England, and to the Father, the Court had to take into consideration where the child was habitually resident. When making this determination, a Court typically looks to where the parents are habitually resident. In this case, it was found that the Mother was habitually resident of Ontario and the Father was habitually resident of England. As the parents were not found to be habitually resident of the same country and as child was so young at the time of the decision and as she had lived in Canada and England for roughly equal amounts of time and, the Court looked to the custodial parent of the Child. It was determined that the child had spent the most time with the Mother during her life and as such, the child should be considered to be an habitual resident of Ontario as the Mother was. Interestingly, the Court held that in the event that they were wrong in this determination, the child was habitually resident of both Ontario and England. Because of this determination, the Hague Convention did not apply because the child was in the jurisdiction that she should be living in.

Furthermore, the lower Court held that if they were incorrect about both of the determinations above, they could rely on Article 13(b) of the Hague Convention which states that a Court is not bound to Order the return of a child where it is determined that doing so would put the child in an intolerable situation. The mother claimed to have left England because of the father’s alcoholism and abuse. The lower Court held that if the child was to be returned to England and the Mother returned with her, she would have to receive support from the Father which would be nominal. As such, notwithstanding the abusive conditions of the home environment which would be intolerable, if the mother had to live in government housing with nominal support from the Father, these conditions would also be intolerable.

The Father Appealed this decision and the Ontario Court of Appeal decided to allow the Appeal. It was found that there were no grounds on which the Court should have dismissed the father’s Application and as such, the Judge had erred in “both interpretation and application of the Hague Convention.” In its reasons the Court explained that the lower Court had set the threshold of proof required for determining the habitual residence of the child too high, the Judge completely disregarded the Father’s residence in making their determination. The child was Ordered back to England as the Court of Appeal found that the child was habitually resident in England at time when the wrongful retention began.

This case is important as the Court notes at the end of their decision that although the child was Ordered to be returned to England, they would not be Ordering the child or the mother to be returning to live with the father. Therefore, with their interpretation of the Hague Convention, the Court was simply re-inforcing the fact that children should not be taken outside of the jurisdiction where they are habitually resident without the consent of both parents. The return of the child also placed this matter back in the appropriate jurisdiction of the English Court system to handle this matter and the separation of the parties accordingly.

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.

This Post Has One Comment
  1. The lower court decision is this matter is interesting in that the court found the mother to be the primary parent of the child who is of a young age. I believe that this determination coloured the whole lower court decision. Based on this determination the court held that the child could remain with the mother in Ontario and that Ontario was the habitual residence of the child. This, in my opinion, is wrong as Ontario was not the last place the child lived with both parents. The court seems to have been sympathetic towards the mother’s position, as am I, and tried to allow for her to remain in Canada with the child. By considering the role the mother played in the raising of the child when determining residence my fear is that the Ontario Superior Court of Justice decision creates a bias in abduction cases in the favour of those parents who take maternity or paternity leave.

    I agree with the Ontario Court of Appeal’s decision which overturned the decision of the Ontario Superior Court of Justice on the habitual residence issue. However, I disagree with the risk of harm analysis Even if a child is not resident in Ontario a court may, when determining whether a child should be returned under the Hague Convention, take jurisdiction of the matter if there is a risk of serious harm to the child if removed from the jurisdiction. I believe there is a risk of harm to a child who is sent back to a situation where her father is an alcoholic. The Ontario Court of Appeal reasoned that the child was not being sent back to live with the father, the child merely had to return to England. So the mother is put in the situation that either the child goes to the father or the mother is basically forced to move back to England where her situation and ability to care for the child is greatly diminished. In Canada the mother has a support system including family and potential employment. In England she is dependant on the father and state. It seemed pretty clear in this case that the best interest of the child is that she remains in Ontario, but I understand the Court of Appeal’s analysis in forcing the child back to England as they want to deter parents from pursuing self-help remedies in removing children from their habitual residence. The Ontario Court of Appeal is basically confirming that a parent must pursue the appropriate avenues when leaving a country with a child. That being said, given the evidence before the court it seems like the mother may ultimately have a strong case for bringing the child back to Canada.

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