|
When counsel is retained by a client and there is an allegation of international child abduction, he or she is taking on a very unique challenge. If the country to which the child has been removed to is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) the operative legislation is this international treaty.
The purpose of the Convention is to insulate children in contracting states, who are under 16 years of age, from the negative effects of parental abduction across international borders. Where a year has not passed from the removal or retention, this purpose is effected by prohibiting the haven state from determining custody and mandating the child’s expeditious return to the home state, subject to a few defences on its face. The Convention on its face is seems deceptively simple. Each case, however, is unique and there are very often issues that arise that force one to examine the Convention from yet another perspective. As a result, there is a proliferation of case law that spans many countries, which gives a fertile field for research for any one working in this challenging but rewarding area of family law.
The most comprehensive review in Canada of the Convention is found in the Supreme Court of Canada case Thomson v. Thomson (6 R.F.L. (4th) 290). Before any work is commenced in this area of the law it is essential that counsel become familiar with this case. It will become your reference for most of the issues that arise and is a most excellent analysis of the Convention, and as such put to rest many of the questions that had been in issue, and which had challenged counsel prior to 1994. .
I have attached to my paper a summary of the Supreme Court and the Court of Appeal cases from across Canada. These cases are a good starting point for any counsel. The case law from England, Australia, and the United States is also very helpful. The Central Authority is often willing and always able to assist counsel. In Ontario, the counsel and staff at the Central Authority will make themselves available to assist in completion of Applications for the return of children, to write the Central Authority of the other jurisdictions for assistance, to file Article 16 notices or to make enquires if the haven state is not proceeding quickly enough.
B Understanding the Convention – It’s Policy and Uniqueness
(i) The Policy in general
When litigating in this area the back drop must always be the policy behind the Convention. Judges hearing applications pursuant to the Convention must constantly be made aware of this underlying policy and this must be continuously emphasized as it is the driving force behind the Convention.
The purpose of the Convention is to protect children from abduction, and to discourage parents from following this course in the first place. It was a response to the international community’s belief that parental abduction is harmful to children and must be curbed. The underlying policy is set out clearly in the Preamble of the Convention which reflects this concern and provides that:
States signatory to the present convention;
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody;
desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access;
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions…
(ii) Deference to the Contracting State
The policy behind the Convention is the assumption and premise that there is capacity on the part of the courts in the place of the child’s habitual residence to protect the child and to make suitable arrangements for his or her welfare. This theme is referred to in many cases. Often there is reference to the statement of Lord Donaldson of Lymington, M.R. in the English Court of Appeal case , C. v. C.( (Abduction: “rights of custody”), (1988), [1989], 1 W.L.R. 654 Eng. C.A.) at 664, where he stated:
It will be the concern of the court of the state to which the child is to be returned to minimize or eliminate this harm and, in the absence of compelling evidence to the contrary or evidence that it is beyond the powers of those courts in the circumstances of the case, the courts of this Country should assume that this will be done. Save in an exceptional case, our concern, i.e. the concern of these courts should be limited the child the maximum possible protection until the courts, of the other country—Australia in this case—can resume their normal role in relation to the child.
- In the Interests of Children rather than Best Interest Test
In Thomson, the court was very clear as to the interpretation of the term “interests of children” in contrast to the “best interests of children”. This point was one of the major issues in the Ontario Court of Appeal case , Pollastro v Pollastro ; 1999 CarswellOnt 848. Judge Abella said at page 10;
Thomson held that the determinative rule for interpreting the Hague Convention was in accordance with the ordinary meaning of the treaty's terms "in their context and in the light of [the treaty's] object and purpose ... including its preamble": see: Art. 31 of the Vienna Convention on the Law of Treaties, 1969, [1980] C.T.S. 37, Thomson at p. 577. Using this approach, La Forest J. made the preliminary finding that the preamble's clause stating that "...the interests of children are of paramount importance in matters relating to their custody" means the "interests of children" generally, not of the particular child before the court.
This observation, combined with the requirement in Article 16 of the Hague Convention that the state being asked to return a child "shall not decide on the merits of “rights of custody” until a determination is made that the child should not be returned, resulted in La Forest J.'s conclusion that in deciding whether to return a child, the court should not consider the child's "best interests" in the same way as in a custody case.
In my view, what is meant by La Forest J's comments is that the decision whether to return a child pursuant to Article 12 should not be based on who should have custody. That explains why the "best interests" test is not applied at this stage. The presumptive interests, which do apply in deciding whether to return a child promptly are those set out in the preamble, namely the interests of children generally in not being wrongfully removed from their habitual residence.
- Article 16
A court may not determine the issue of custody in the face of an application pursuant to the Convention. This mandate is set out in Article 16 which states:
after receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
In many cases the Central Authority will file what is called an “Article 16 notice” with the court. As a precaution, counsel usually includes this in their pleadings, as a judge may want to make an interim order on the basis of the criteria of the legislation in their own jurisdiction. The authority to do so is vitiated by the terms of the Convention. The court must be made aware of this provision immediately.
There are many judges that have done a great amount of work in this area. Others may not be familiar at all with the Convention. Unless you are absolutely certain that the judge you are appearing in front of is very familiar with the Convention, be prepared to go through it very carefully. Do not attempt to put your specific facts before the court until you are satisfied that the judge understands the policy and uniqueness of the Convention as set out above.
One must understand that judges are trained to look to the “best interests of the child” and have pride in their courts’ ability to protect children. The judge hearing your case at first instance, must appreciate that an appeal will likely lie from any decision that does not address and support the underlying policy of the Convention. If a judge applies the best interest test and/or does not give deference to the ability of another jurisdiction to deal with the custody issue appropriately the decision will likely be reversed.
C Understanding the Convention – It’s Terminology and Criteria
The Convention applies where there has been a “wrongful removal” or “wrongful retention” of a child. A wrongful removal occurs where a party takes the child from the jurisdiction that is the child’s habitual residence. A wrongful retention occurs when a child is retained outside the habitual residence, beyond a time agreed on by the parties or set out in a court order. How these terms have been defined and interpreted will be discussed below.
Article 3 of the Convention states that a removal or retention is wrongful where:
(a) it is in breach of “rights of custody” attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitual resident immediately before the removal or retention; and
(b) at the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
This conduct is remedied by prohibiting the haven state from deciding the merits of the claim for custody of that child subject to some limited defenses, which will be discussed below. If a year has not passed from the removal or retention, the legislation requires a child’s expeditious return to the contracting state from which the child was taken.
A full analysis of the interpretation of all of the terms of the Convention is beyond the scope of this paper. Thomson and other case law is replete with discussion as to how each term should be interpreted. I will attempt to set out a brief summary below but suggest that a careful reading of the Thomson case and other case law will be the best reference point for a full understanding of these terms.
(i) “rights of custody”
Article 5 states that:
For the purpose of this Convention:
- “rights of custody “shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence:
- “rights of custody” shall include the right to take a child for a limited period of time to a place other that the child’s habitual residence.
Article 3 states that “rights of custody” may arise by operation of law or by reason of judicial or administrative decision or a legally binding agreement under the relevant state.
It shall be noted that pursuant to Article 3, “rights of custody” may also be attributed to an “institution or any other body”. Once litigation has begun with respect to a child and custody of that child is in issue, the removal of a child will be found wrongful as the “rights of custody” in that case flow to the institution, namely, the court.
The most common situation is where parents are living together and both are exercising parental care and control of the child. In most jurisdictions both parents are equally entitled to custody of the children, if one parent leaves with the child. Other situations are set out in Thompson at page 317 where it states:
From the preparatory work, it seems clear, at least in some cases, that the removal of a child from a country in the face of a court order prohibiting it was intended to be covered by the Convention. Thus in the Preliminary Document No. 1 "Questionnaire and Report on international child abduction by one parent" (the "Dyer Report"), a survey of conference members was conducted in which five types of situations considered to constitute "child abduction" for the purposes of the questionnaire were described. I set them forth here, noting that the fifth is directly relevant (Actes et Documents, at p. 9):
A The child was removed by a parent from the country of the child's habitual residence to another country without the consent of the other parent, at a time when no custody decision had yet been handed down but serious problems between the parents already existed.
B The child was abducted by a parent from the judicially determined custodian in one country and removed to another, where no conflicting custody decision had been handed down.
C The child was retained by the non-custodial parent or other relatives beyond a legal visitation period, in a country other than that in which the child habitually resided.
D The child was abducted by a parent from the legal custodian in one country and removed to another, where the abductor has been granted custody under a conflicting order in that other country or in a third country.
E The child was removed by a parent from one country to another in violation of a court order which expressly prohibited such removal. [Emphasis added.]
Situations can become complicated because “rights of custody” are determined in accordance with the originating country. While many jurisdictions are very similar to Canada, some are very different from Canada. Where one review’s the actual Hague Application that has been sent from the requesting state, the “rights of custody” that have been breached are set out. Most times the Applicant will include the corresponding operational law from the requesting state.
In spite, of this the parent who has removed the child will not be precluded from disputing the issue, and often will. If there is confusion with respect to whether or not there was an infringement of “rights of custody” or any other question with respect to the wrongful removal or retention, one may ask for a declaration from the requesting state under Article 15 which states;
The judicial or administrative authorities of a Contracting State, may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting State shall so far as practical assist applicants to obtain such a decision or determination.
Again one can turn to the Thomson case for direction. At page 321, the court cites a quote of Lord Donaldson M.R. from C v.C, supra;
“Custody”, as a matter of non-technical English, means “Safe keeping, protection; charge, care, guardianship” (I take that from the Shorter Oxford English Dictionary); but “rights of custody” as defined in the convention includes a much more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is “the right to determine a child’s place of residence”. This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother, but, in so far as any question arises as to the child residing outside of Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court, or other institution, or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention. I add for completeness that “a right to determine the child’s place of residence” (using the phrase in the convention) may be specific, the right to decide that it shall live at a particular address, or it may be general, e.g. “within the Commonwealth of Australia”.
The issue of “rights of custody” is not necessarily one of the more problematic terms in the convention but it has from time to time created problems.
In the case of Finizio v. Scoppio-Finizio, (1999 Carswell Ont 3018, Ontario Court of Appeal), there were conflicting opinions from Italian legal experts retained by each of the parties, with respect to who had custody in accordance to Italian law at the time the parties separated. The relevant Italian law in the event of a separation was interpreted differently in expert opinions by different counsel. In that case, the Court of Appeal relied on a letter from the Italian Central Authority which clearly stated that both parents in this situation would have “rights of custody”. Often the Central Authority from the requesting state will be the source of the best neutral and impartial information about the law as it operates in the requesting state.
In Kinnersley-Turner v. Kinnersley-Turner, (1996 CarswellOnt 4280; 24 R.F.L. (4th) 252, 140 D.L.R. (4th) 678, 94 O.A.C. 376; Ontario Court of Appeal) the mother, originally from England had an English order allowing her to live in Canada with her daughter. She had returned to England and it was found that she had shown a settled intention to reside there. When things did not work out she returned to Canada. The husband began an Application under the Convention. In spite of an order saying that she could live in Canada, her move to Canada was found to be “wrongful” as there had been an application for custody in the British courts. It was found that she had breached the “rights of custody” attributed to the UK court, which were actually being exercised by that court within the meaning of Article 3 of the Convention and the child was ordered returned to England.
(ii) Habitual Residence
There is no definition of habitual residence in the Convention. This was done purposefully. In K.(A.) v. F.(E.)2001 CarswellQue 1246, the court cites the very important and oft-quoted case of Re Bates and Kapur v Kapur and states;
In the case of In Re Bates[FN3] Mr. Justice Waite stated:
The eleventh edition of Dicey and Morris on The Conflict of Laws contains the following helpful passages at page 166 and following, on the topic of habitual residence. I will quote two brief extracts.
"Habitual residence" has long been a favourite expression of the Hague Conference on Private International Law. It appears in many Hague Conventions, and therefore in English statutes giving effect to them, but is increasingly used in statutes not based on international conventions. One of its first uses at The Hague was in the context of the custody of children, largely because of the artificiality of domicile as applied to young children. No definition of "habitual residence" has ever been included in a Hague Convention. This has been a matter of deliberate policy, the aim being to leave the notion free from technical rules, which can produce rigidity and inconsistencies as between different legal systems.
Then a little further on:
It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions.
Although that decision was made in the different context of section 5 of the Domicile and Matrimonial Proceedings Act, I follow the judgment of Bush J. in Kapur v. Kapur, [1984] F.L.R. 920 in holding that there is no real distinction between ordinary residence and habitual residence. The governing principle for ascertaining the elements of habitual residence is contained in the speech of Lord Scarman in R. v. Barnet London Borough Council ex parte Shah, [1983] 2 A.C. 309, where he says, at page 314:
..and there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the porosities intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
There is also an excellent discussion of the meaning of the terms habitual residence in the case of deHaan v. Gracia , (2004 CarswellAlta 224). It states at p 8,
The most quoted definition of the term "habitual residence" comes from the English case of In re Bates, No. C.A. 122/89, High Court of Justice, Family Division Court, Royal Courts of Justice, United Kingdom (1989):
There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
Garbolino's commentary included at 93 under the heading "§ 4.6 Habitual Residence - Duration of stay":
The Convention does not require a minimum period of time for a child to remain in a country in order for that country to become the child's habitual residence. It has been suggested that the time necessary to establish a habitual residence may be as short as one day.
In Kinnersly-Turner v. Kinnersly-Turner, a judge had no problem finding that the mother had established a habitual residence based on the fact that she had applied for employment, made plans for accommodations, and had purchased a one-way ticket. These are the types of facts that are relevant.
It would seem that the intention of the parties is instrumental in determining the habitual residence of a child. In deHaan v. Gracia, supra the court refers to an often quoted American case and states:
In Mozes v. Mozes, 239 F. 3d 1067 at 1072 (9th Cir. 2001) a child cannot be wrongfully removed or retained at the jurisdiction to which the child is taken can be considered its habitual residence. I am grateful for the research and judgment of Mr. Justice Rooke of the Alberta Court of Queen's Bench for his decision in Proia v. Proia, [2003] A.J. No. 846 where he stated at para. 19:
The authorities that assisted me in finding that the children were habitually resident in Alberta from June 27, 2000, include Robert D. Arenstein, "The Anatomy of a Hague Case: When a Child[ren] Has Been Abducted to the United States" (New York, circa 1993),...In that article, the author, citing: Cohen and d'Assignies v. Escalante (No. BD 051876, Super, Ct. of Cal. December 9, 1991), said:
If a family decides to move, permanently, to another country and thereafter the parents sell the family home, quit their jobs and purchase a residence in another country, the family has effectively changed the habitual residence of the child[ren]. Therefore, if one parent then decides the move was not what he or she really wanted, the child[ren] cannot simply and unilaterally be removed from the "new" habitual residence.
The issue is not as clear as to what should occur if only one parent has had the settled intention to change the habitual residence or if the agreement to change the habitual residence was obtained by fraud. This is not quite as clear.
For the most part, the issue of habitual residence is an agreed fact between parties. However, when it becomes an issue it can become very problematic. It will be determined on a case by case basis in accordance with the facts of each individual case.
(iii) Other criteria
The other factors that are relevant are the age of the child as the Convention does not apply to children over 16. There recently been a situation, which has yet to be decided where a developmentally delayed child over 16 was abducted. It is unclear as to what will occur. There also is the issue as to what should occur if the Application is brought beyond the one year time frame. This becomes significant if the parent has not known where the children were.
D The Role of Counsel
Family law counsel can be retained in international abduction cases in three different ways.
(i) You may be retained by a parent whose child (I will use the term child but, of course, in some situations there will be more than one child involved) has been wrongfully removed from Canada and they want assistance in having the child or children returned immediately.
(ii) You may be retained by a parent outside of Canada whose child has been wrongfully removed to Canada.
(iii) You may be retained by a person who is currently in Canada who has arrived here from another jurisdiction, and is facing defending a Hague Application.
I will deal separately with these three very different scenarios.
(i) Your client’s child has been removed from the jurisdiction and your client, who is in the jurisdiction, wants the child returned immediately to the habitual residence which is Canada.
Clients in this scenario are always very upset and want immediate action. These situations are always highly charged emotionally. Often the parent is dealing with the abduction of his or her child at the same time that they are facing an abrupt end to their marriage. The situation may be as dramatic as a parent coming home to find an empty room, where their child has slept the night before. Both his spouse and the child may be gone. Other times, the client will come to you after a parent had either fled to another jurisdiction or has been kept in another jurisdiction beyond the time frame agreed upon, and there have been ongoing direct negotiations, but discussions have broken down. The aggrieved parent may now find there is no solution but to resort to obtaining counsel and asking if the facts lend themselves to an application for the child’s return, pursuant to the Convention.
Once you have interviewed the client and are satisfied that the haven state is a signatory to the Convention, the child is not over 16 and has not been out of the jurisdiction for more than one year, you must determine whether the child has actually been wrongfully removed or is being wrongfully retained from his or her habitual residence, pursuant to the criteria set out in the Convention and described above. Although the Convention seems clear on its face, the interpretation of the terms of the convention and their application have spawned an enormous amount of cases and commentary. Each of the phrases in the convention have been looked at carefully by the judiciary and each of the terms in the Convention must be understood before the convention can be comprehended as a whole. Many times it is unequivocal. You are certain the child has been wrongfully removed or retained and you are confident the child will be ordered returned, unless a defence is raised as a result. In many cases the wrongful removal is conceded and the issue is whether the abducting parent can make out a defence.
Once you are satisfied that this is a situation in which the Convention is operative then you can assist the client in completing an application for the return of the child. If the Central Authority in your jurisdiction is satisfied that this is an appropriate case they will submit the application for you to the Central Authority where the child is being retained.
Counsel in that jurisdiction will bring an application for the return of the child pursuant to the Convention. While it is not always necessary to obtain what is known as a “chasing order” in your jurisdiction it is advisable for several reasons. First, it will enable you to obtain a declaration pursuant to Article 15 of the Convention, stating that the child has been wrongfully removed or retained in the other jurisdiction. This gives an unequivocal message to the judge hearing the Hague Application in the haven state. Counsel in the haven state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the haven state for such a declaration. Second, it facilitates obtaining legally binding undertakings in the event that the child is going to be returned, and the haven state wants some assurance that there will be protection for the child when the child returns. Again, counsel in the haven state arguing for the return will be greatly assisted if it can propose that legally enforceable undertakings, will be readily consented to in the return state, as a proceeding has been commenced. A consent order for interim custody, support or a restraining order in the home jurisdiction will often satisfy a reluctant judge as to the safety of a child’s return. On the other hand, it will delay the return if you are forced to obtain such an order as a condition precedent to the return, after the application has been heard. Third, this action on your part creates a proceeding in which to obtain custody when the child is returned. Last it enables you to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction. For example, it is routine to ask for the police or the RCMP to assist in the enforcement of the order to return the child once the child is back in the home state or for an order that the child once returned not be removed from the jurisdiction.
Once counsel is retained in the haven state, you may be called on to assist in completing/drafting the evidence and/or providing documents required to present the Hague application in the haven state. You will be responsible for having the evidence delivered to the counsel who will be arguing the case. You will become responsible for an evidentiary record that will be effective. This is of course is all the more complicated if the language spoken in the haven state is not English. It should be noted that the Convention is clear in Article 14 that evidentiary burdens and procedure irregularities are not to be an impediment in processing the application pursuant to the convention. Article 14 states;
- In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
Once the child is returned to your jurisdiction the issue becomes a custody case often with a request for mobility.
(ii) You are retained by a parent outside of Canada whose child has been removed from their habitual residence and the child is in your jurisdiction.
(i) The General Situation
When a child is in Canada wrongfully, counsel must proceed with a Hague Application asking for the expeditious return of the child. In most provinces the Central Authority assists in providing counsel for the parent who is not in the jurisdiction. The aggrieved parent or their counsel in the home state can contact you directly. In Ontario lists of private counsel who have experience in this area are provided and legal aid is available if the party would have been eligible for legal aid in their home state.
In any event, in this situation you are retained by a parent who is not from your jurisdiction to ask the court for an order that their child be returned immediately to the habitual residence. It is an unusual in that you will likely not have met your client who is entrusting you with the task of getting his child back as soon as possible.
Sometimes, the child is known to be in Canada but their exact whereabouts are unknown. The methods available to locate the child are beyond the scope of this paper and will vary from province to province. However, the custody legislation in each province will most often provide powerful mechanisms for disclosure as to where the child may be and will always be the starting point for the investigation. Sometimes the parent in Canada will commence a custody application to somehow “legitimize” the removal, and you will respond with the Hague Application.
Timing is all important. All courts must recognize that these matters must be expedited. Article 11 states;
- The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.
As stated above, pursuant to Article 16, no order for custody can be made in Canada, until the Hague Application is heard.
In all cases, you will proceed to argue first even though you may be the responding party in the proceeding as the Hague Application takes precedence.
While the reviewing and processing of an application by the Central Authority is most often sufficient evidence that the child has been wrongfully removed, that is not the end of the enquiry. You yourself must ascertain whether the child has actually been wrongfully removed or is being wrongfully retained in accordance with the criteria of the Convention. If so the application must be brought expeditiously for the return of the child.
There is no magic in the pleading for the return of the child but the safest route is to ask for relief in the exact wording of the relief available pursuant to the convention.
In Ontario, Hague Applications are heard on affidavit material. The Court of Appeal in Ontario in Parsons v. Styger; (1989 CarswellOnt 1001) confirmed the trial judge’s discretion to not have a trial in the case. The trial judge in Parsons v. Styger (Parsons) ;( 1989 CarswellOnt 737) stated;
I do not accede to the request for the trial of an issue on this point. It would entail additional delay and expense. Had the evidence been stronger, I may have considered such request as having more merit. In refusing it, I have also considered the wording of the Convention which in the preamble refers to procedures to ensure "prompt return" and in Article 2, that the Contracting States "shall use the most expeditious procedures available". Nor do I think that in this case justice is being sacrificed on the altar of expediency.
In Hadissi v. Hassibi ( Hadissi v. Hassibi; 1994 CarswellOnt 2076 ) a charter argument with respect to the right of a hearing made by the abducting parent failed. The court stated;
As I indicated earlier in these reasons, the wife also argued that the Convention is contrary to Sections 7 and 15 of the Charter of Rights. As to Section 7, she argued that she would be deprived of a hearing into the merits of her claim and that this would breach Section 7. However, in my view, the wife will not be denied a hearing; there will be a hearing of the custody issue in California. The issue in this case is not whether a hearing into that issue should be held, but simply whether it should be held in Ontario or in California and I conclude, as I have indicated, in favour of the latter.
This particular argument was referred to in the Parsons case, which I have already referred to. There, at page 11, where the Court of Appeal's brief reasons are reported, that court dealt with the claim under Section 7 of the Charter in an analogous context of wrongful removal of a child and dismissed that argument, as had the trial judge in that case.
Your affidavit material must be as compelling and detailed as possible. If there is an appeal it will form the complete record as often there will not be a transcript of the hearing. Any corroborating evidence should be included.
(ii) A unique situation the Convention in the face of a refugee claim
The case of Kovacs v. Kovacs; 2002 CarswellOnt 142959 presented an unusual challenge to the court and remains an interesting question. Miklos Kovacs (“the Applicant”) and his wife Miklosene Kovacs (“the Respondent”) were born in Hungary. They were married on September 21, 1991 and lived in Hungary with their one child, Gergo Miklos Kovacs, who was born December 2, 1997. On or about March 11, 2001 the Respondent undisputedly wrongfully retained the child. On March 28, 2001, the Respondent, along with the child arrived in Toronto. At the Port of Entry, she submitted a Notification of a Claim to be a Convention Refugee on the basis of persecution as a member of the Roma racial group and gender related persecution. The refugee hearing was scheduled for February 11, 2002.
The Applicant brought an Application, on July 6, 2001, requesting the immediate return of the child to Hungary pursuant to the Convention. The Respondent raised a defence under Article 13(b) that the child should not return to Hungary because there was domestic abuse and persecution as a Roma Gypsy that would expose the child to grave risk of physical or psychological harm or otherwise put the child in intolerable situation if the child were ordered returned. She also raised a Constitutional question and challenged the constitutional validity, application and operability of the Convention, as set out in section 46 of the CLRA.
On the first return of the application, the Federal Department of Justice was granted Intervenor status and the Attorney General of Ontario appeared to defend the provincial legislation as the convention had been incorporated into the provincial custody legislation.
The Hague case itself took many twists and turns with the real issue being how to balance two international obligations:
- the obligation to ensure a prompt return of unlawfully removed children to their home jurisdiction; and,
- the obligation to protect legitimate refugees from the grave risk of harm they would suffer, if returned to their home state.
A threshold jurisdictional issue was whether the child’s mother could make a valid refugee claim on behalf of the child. The Applicant contended she could not, arguing that one parent should not be able to trump the other by so doing. A further issue concerned the extent of the hearing required before a Judge could order the return of the child to the home jurisdiction for a determination of the child’s best interests on the merits and whether this hearing should involve the participation of both parents. Lastly, there was the issue of whether a return of a child without a determination of the refugee claim brought by the mother would be a violation of Section 7 of the Charter of Rights and Freedoms.
A person initiates a claim to be a convention refugee by notifying an immigration officer in writing of an intention to make a claim and the process begins. There are no specific provisions for dealing with minor claimants at this initial stage in the refugee determination procedures. In cases where there is a conflict between two parents who both have a legal claim to custody of a child, a preliminary issue arises as to whether or not a claim to refugee status should be asserted on the basis of the wishes of one parent alone. The Applicant’s position was that the refugee procedure was not appropriate to make determination as to who is best suited to speak on behalf of the child for the following reasons. First, the father is not a party to the refugee hearing and cannot make submissions before the tribunal. Second, the non-adversarial refugee process is simply not equipped to make such a decision in cases where there is a serious factual and legal dispute between two parents as to who is best able to protect the interests of the child. In this situation, the father was not advised of the fact that the Respondent had made a claim until after it had been referred to the CRDD. He was not represented or entitled to make representations before the Senior Immigration Officer who determined eligibility. In this case, there was evidence that the child has been removed to Canada without the consent of the father and the officer was alerted to this fact. It is unclear how there was no attention to pay to the fact that the child was abducted.
The serious implications of the issues in this case were obvious. An abducting parent could claim refugee status and then be protected from an order for an expeditious return of the child as the matter moves into the refugee process that could take years - thus “trumping “the Convention. It would invite any parent involved in a custodial dispute in another jurisdiction to come to Canada and assert a claim to refugee status on behalf of the child. Once the claim was registered, the Canadian Courts would be hopeless to intervene. The jurisdiction of the foreign Courts would be undermined. This all because, the refugee claim would be allowed to continue until a determination was made, whether or not the claim was made in good faith, was bogus or strategic. Such an interpretation would drive a coach and four through the Convention and the CLRA, which implements it.
It was conceded by all parties that the Ontario court could not make an order to return the child to a home country if there had been a refugee determination and a non removal order in place. The Respondent submitted that the provisions of the Convention as implemented in Ontario through the CLRA is ultra virus of the provincial government and should not be given effect because the provisions of the Immigration Act allowing for refugee claims takes precedence over them. The Applicant submitted that this position was untenable. There can be no issue that the provisions of the CLRA which enacts the Convention, is valid provincial law enacted under the Province of Ontario’s jurisdiction over family law as established in the Constitution Act, 1867. By the same token, there is no doubt that the provisions of the Immigration Act allowing for a right of a party to make a refugee claim in certain circumstances, is valid legislation enacted by the Federal Parliament pursuant to its jurisdiction to govern Immigration Law as provided by the Constitution Act, 1967.
The Respondent relied on the doctrine of paramountcy and argued that, in this case, there was a conflict between the Federal Legislation, which mandates a determination of a refugee claim, and the provincial legislation, which requires the return of the child without a determination of the claim. In the event of a conflict, the Respondent submitted that the Federal Legislation, in all cases, must prevail. The fact is that paramountcy is to be applied only where there is an actual conflict in operation, as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; and compliance with one is defiance of the other. In considering two valid pieces of legislation, both of which enact international conventions dealing with fundamental human rights issues to which Canada is a party, it was submitted that the Court must seek to find the interpretation which is most in keeping with the human rights purpose of the Conventions and which to the greatest extent possible gives effect to the provisions of both Conventions. In conclusion, the position of the Applicant was that in circumstances where a Judge is not satisfied that the child would, on the balance of probabilities, suffer serious harm if returned, the principles of fundamental justice would not be violated if the child is returned to the country having proper jurisdiction over issues related to custody, without a hearing on the merits of the refugee claim. This is an instance for the application of the adage, “the sooner, the better”. The objectives of the Immigration Act promote the domestic and international interests of Canada, recognizing various needs. It was the Applicant’s position that the right to come into and remain in Canada is not a right created by the wishes of a child or the dictates of their parents in circumstances where the other custodial parent does not wish to have the children leave their home state. The Applicant’s position was that absent something more – absent a serious risk of harm -- a claim for refugee status should not allow one parent to remove children from their home without the consent of the other.
In conclusion, the judge found the CLRA was not impaired, qualified or rendered inoperative by the Immigration Act under the doctrine of paramountcy. The provisions of the Immigration Act do not constitute a complete code for the determination of all matters relating to an assessment of a child’s risk or the enforcement of extra provincial orders. There is no language in the Act prohibiting other proceedings or purporting to give refugee claimants a right to remain in Canada against all other laws. The Act does not provide for an absolute right to stay in Canada when a person is a refugee claimant. This right only applies when a person is actually found to be a refugee. At that point, there would be direct conflict in the legislation. But until a person is found to be a refugee the Immigration Act can be interpreted consistently with Canada’s obligations as a signatory of the Hague Convention and in particular with the requirement in the convention that children be returned to their habitual residence for the determination of the issue of custody in an expeditious manner. To allow both parents to have a say is in accordance with the Convention of the Rights of the Child. Lastly, the Immigration Act does not usurp the parens patriae jurisdiction of a superior court judge.
This case has received international attention as the issue has worldwide implications. The judge’s carefully reasoned judgment has been helpful in clarifying many of the issues and the case is an interesting example of the intersection of family immigration and constitutional law.
In the end, the Canadian government’s position was difficult to reconcile. The Provinces incorporated an international convention that Canada had signed, only to have the provincial legislation challenged. The logical conclusion of their position was that Canada could be a haven for child abductors who arrive in Canada claiming they are refugees. In doing so, they would be exempt from an order to return a child to his or her habitual residence for years. By then, the Hague Convention would be of no effect whatsoever.
The Kovac’s case was not appealed for unrelated reasons. The Department of Justice has made it clear that they were not persuaded by the decision and intends to take his issue further at the first opportunity.
(iii) You have been retained by a person in Canada who has arrived here from another jurisdiction and is facing defending a Hague Application
If you are satisfied that the removal is wrongful, in almost all circumstances your recommendation should be for the client to return with the child immediately to the contracting state. You may have some opportunity to negotiate a generous access regime acceptable to the aggrieved parent if the child remains in Canada that will satisfy the other parent. You may often be able to negotiate acceptable terms of the return as often the parent wants the child home without having to go through the court process. Questions as to what financial support will be available for the returning parent, what accommodations will be available, what interim custodial arrangements will be in place upon the return may be able to be addressed. Your client will likely be facing a custody challenge upon the return so his or her plan of care when they with the child return must be put in place, and must be able to provide stability and security for the child.
The defences that will be discussed fully in another paper can be raised but are not often successful. For the most part, you are best to be honest about your client’s chances of success. The most common defence raised is Article 13 (b). For the most part the defence has not been a successful answer to a wrongful removal. To most practitioners in this area this has raised many questions, but if you are told a believable cogent account of abuse that precipitated the flight you may consider raising the defence.
Although the focus of my paper is to give an overview of the application of Convention, I cannot resist the opportunity to voice my opinion with respect to the impact of the Convention on woman fleeing domestic abuse as stated. The Article 13 defence is often raised, but rarely successful. There has not been a thorough interpretation of the application of the defence by the Supreme Court of Canada.
The Court reviewed the operation of the Convention in Thomson v. Thomson. While providing an overview of the application of the Convention, the case is not of great assistance with respect to the application of Article 13(b).
However, in Thompson, the Court does state that removing the child from the present caregiver and returning him or her to the jurisdiction of habitual residence, might expose the child to grave risk or an intolerable situation. But, the Court pointed out, it would be only in the rarest of cases that harm of this type would meet the Article 13 threshold. Other than this comment, and a quote of Nourse L.J. from Re A (Re A (A minor ( abduction)), there is little guidance given in Thompson and it is not considered an “Article 13 (b) case.”
In Re A, Lord Justice Nourse says that the risk has to be something greater than would normally be expected on taking a child away from one parent and placing him or her with the other. It must not only be a weighty one, but it must be one of substantial and not trivial psychological harm.
It is conceded that the risk contemplated in the Convention has to be more than an ordinary or trivial risk. Words such as obvious, substantial, severe and threatening have been used to define the level of harm, but there has been little said about what the actual burden of proof of the threat of harm is, once the defence is raised.
The drafters of the treaty did not intend the defence to be an invitation to make a “best interests” inquiry. It is not a defence to show that the child is doing well in the new environment and would suffer if the status quo were changed. Nor is it a defence to show that there are financial difficulties for the returning parent; that the contracting state likely would not allow the child to move with the parent; that the support systems or cultural roots are in the haven state; or that there are no legal services available in the contracting state.
The question is whether there should be a different approach once spousal abuse is raised and accepted as the reason for the removal.
It is generally acknowledged that a child’s future welfare can be protected in the requesting country. Courts have said that respect for another jurisdiction alone should not blind the court to its obligation to carefully consider issues of risk to the child as is mandated by Article 13 (b) of the Convention.
The confusion about the proper application of Article 13(b) led to inconsistency ion the case law. For example, in Ontario, there were discrepancies in both the result and the methodology applied in these difficult cases.
In Hadissi v. Hassibi-supra, Eberle J., on appeal from a Provincial Court decision, ordered a return of a child, stating the evidence of abuse was unreliable, but gave little guidance as to what level of proof would have been required to establish the defence. Great reliance was placed on the fact that the return of the child would be accompanied by an order that the father would not have custody, unless an order were made to that effect in California, the jurisdiction of habitual residence.
The question becomes whether Article 13 (b) creates a situation where a victim of abuse can be further victimized. Judges put children in harm’s way by a strict interpretation of the section? Is the legal system enabling and empowering abusers?
In our mobile society, it is not unusual for a parent to be residing outside their country of origin. If a mother, for instance, finds herself in an intolerable abusive situation she may flee to safety. Often that means “going home”. In most cases, she flees with the children. In those cases, the father may bring a Hague application alleging that his child has been wrongfully removed to the haven country. In many situations, the woman leaves a situation of peril with nothing but her infant in her arms in order to seek sanctuary with her family. Many of these women have no idea that they have done anything wrong and are totally unaware of the legal consequence of their actions. In most cases, an order for the return of the child involves the return of the mother with the child. The issue then becomes whether the harm that faces a woman if she returns to the close proximity of an abuser, should be of a higher concern and given more deference than the right of an abuser to force the return of the child.
Often the haven state is where the abuse victim has family and support. It is devastating to a victim to be told that she must return to the situation that she escaped. This defies common sense. To a person escaping from the control of an abusive spouse, this is granting her abuser the ultimate control.
The operation of the defence becomes even more difficult to understand when the mechanics of the application are explained. In Ontario, pursuant to the Convention, if the applicant can establish need, the out of country party will obtain legal aid, although the party and alleged abuser is not even a resident of Ontario. The person who has fled will have to defend her application.
In Pollastro v. Pollastro; 1999 CarswellOnt 848, the Court of Appeal allowed the wife to remain in Ontario and found that the domestic violence against the mother had an impact on the child. In that case the husband and wife were married in California on August 24, 1996. The Appellant was a Canadian citizen. The Respondent was an American citizen. There was one child of the marriage, Tyler Benjamin Pollastro, who was born February 27, 1997 in California. The child had dual citizenship. The parties resided in California when they separated on or about September 7, 1997.
The Appellant alleged a history of significant spousal abuse. She stated that the respondent has ongoing problems with drug and alcohol abuse, anger management difficulties, and a general lack of basic parenting skills. She also described incidents where the respondent put the child in danger.
The sworn affidavit evidence of the Appellant confirmed and attested to the allegations of abuse. Various affidavits of independent witnesses corroborated the allegations of abuse, the character of the Respondent and the abusive situation attested to by the Appellant. Sworn statements of the deponents attested to the Respondent attempting to burn the Appellant with his cigarette and his throwing coffee at the Appellant while the child was in her arms. Witnesses observed physical injuries to the Appellant and the drug use of the Respondent. There were numerous reports of his general instability.
Additional uncontroverted factual evidence gave credence to the allegations of the Appellant. The Metropolitan Toronto Police observed the injuries of the Appellant and a police report was filed. The criminal record of the Respondent included a conviction. Medical evidence described injuries suffered by the Appellant. The court reversed the decision of the trial judge.
The judge at first instance ordered the return of the child to California.
CONCLUSION
The interests of the child are central to any decision concerning the child and is the principle underlying the Convention. This is universally recognized in a number of international documents such as the Convention on the Rights of the Child. Article 3 which states that in all actions concerning children the best interests of the child shall be a primary consideration. An application for a return under the convention is, of course, not a determination of who should ultimately have custody of the child. A custody application involves a straightforward general consideration of what is in the child’s best interests. The convention does however recognize that the court has an obligation to protect a child from serious risk.
The Convention was an unprecedented effort to bring order and resolution to a complex problem. In most cases, it accomplishes its goals. One must remember, however, that the policy underlying the Convention is not to put a child in harm’s way and in spite of the effect of the Pollastro case the present approach of the Court to the grave risk defence can do just that, the time may be ripe for judicial review with respect to this issue.
|
