Non-Hague countries subject to different test for return of abducted children


Non-Hague countries subject to different test for return of abducted children
Posted in Michael Stangarone Posted on May 29, 2020

Courts are right to distinguish between Hague and non-Hague countries when deciding whether to order the return of abducted children, says Toronto family lawyer Michael Stangarone.

In G. v. R., Ontario’s Court of Appeal overturned a lower court decision ordering a mother to return her six-year-old daughter to Dubai in the United Arab Emirates, where her father lives.  

The unanimous three-judge panel found the Superior Court judge erred in treating the application under s. 40 of the Children’s Law Reform Act (CLRA) as if it had been made under the Hague Convention.

Canada is a signatory to the Hague Convention, an international agreement, which provides a mechanism for the return of abducted children to their country of habitual residence – subject to certain defined exceptions – but the UAE has never signed on.

“This case is important because it makes clear that the test is different for non-Hague countries,” says Stangarone, a partner with MacDonald & Partners LLP, who acted for the successful mother at the appeal court.

 

Non-Hague Signatories

While Hague principles may be used in some cases involving non-Hague signatories, Stangarone – a frequent litigator of international child abduction matters – says it makes sense to subject them to different standards.

“Signatories are presumed to be capable of determining custody and access issues in the best interests of the child, but you don’t have that assurance when you’re dealing with a non-Hague country,” he explains.

According to the ruling, the Lebanese-Canadian mother married the child’s Saudi-born father in 2012 in London, where their daughter was born a year later.

The parties separated soon after, engaging in extensive legal proceedings before a consent custody and access order was made by a U.K. family court in 2015, preventing either from removing the child from that jurisdiction without the written consent of the other or an order from a judge.

In 2018, the mother claimed that a planned two-week visit with her daughter to the father’s new home in Dubai turned into a lengthier stay because he confiscated both of their passports on arrival, leaving them trapped in the UAE for 14 months – allegations denied by the father.

Both sides agreed that in May 2019, the mother fled with the child to Lebanon, before travelling on to Toronto, where her own mother and other family live.

The father then applied to an Ontario court under s. 40 of the CLRA for the child’s return to Dubai, which he claimed had become her habitual residence.

After siding with the father on the issue of the child’s habitual residence, the application judge ordered her return to Dubai, concluding that the move would not cause her “serious harm.”

 

Hague Convention Framework

However, the appeal panel found the judge erred in applying a Hague Convention framework to her decision-making.

“I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application,” wrote Justice Michal Fairburn for the appeal court. “While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applicationsThe court’s ability to exercise a broader range of powers under s. 40 is particularly important.”

In this case, the appeal court found the application judge should have been focused on the issue of the child’s wrongful removal to Ontario, rather than the question of her habitual residence.

This in turn would have forced consideration of the 2015 U.K. custody order, which the mother claimed was still valid.  

 

Consent Custody Order 

“In all of the circumstances, the application judge should have given substantial weight to the Consent Custody Order when arriving at an appropriate disposition. Given the highly disparate accounts of the parties, and the clear need to resolve those accounts before ordering the child’s return to Dubai, the matter should have been returned to the Central Family Court in London, U.K. for determination,” the appeal court ruling concluded.

In the event the U.K. court declines jurisdiction, the panel ruled that the father would be able to seek a rehearing of his s. 40 application in Ontario. But in the meantime, the child was ordered to remain in the Greater Toronto Area.

Following the ruling from the province’s top court, the mother told the dramatic story of her escape from Dubai to the Toronto Sun, explaining how she found her daughter’s confiscated passport while her husband was out of the country for a family funeral.  

“She loves Canada,” she told the newspaper. “It’s cold and it’s snowing in April but she says she doesn’t want to be in London or Dubai. She just wants to stay here.”

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