International boundaries can introduce numerous complications when child custody is an issue between parents going through separation or divorce. When one parents wants to move to another country with the child, the other parent may object. Courts can consider a number of factors when determining where the child “habitual residence” is when deciding where the child should ultimately live. Additionally, parents who remove a child from the a country in violation of a court order introduce criminal acts to an already difficult situation. A recent decision from the Ontario Superior Court of Justice highlights some of the challenging scenarios courts can face when working through such issues.
The child involved in the trial was six-years-old at the time. She is a citizen of the United Kingdom. Her mother, a Canadian citizen, met her father, a citizen of Saudi Arabia and the United Kingdom in London and began living together there in 2012. The child was born one year later.
The parents separated shortly after the child was born. The mother wanted to move with the daughter to Wales in September, 2013, but was prevented from doing so via a court order. The mother was granted custody of the child on 2015, with the father being granted access three times per week.
The father moved to Dubai in November 2015, and the mother and daughter moved there in April 2018. The parents lived together for a short time following the arrival of the mother and daughter. However, the reunion was short-lived. In March 2019 the father moved out of the apartment the family shared. In May 2019 the mother took the child’s passport from the father’s apartment and left with the child to Canada via Lebanon.
The father went to court seeking a motion for the return of the child to Dubai, claiming it is the child’s habitual residence. He also sought an order that the mother not remove the daughter from Toronto without a court order, and that she had over the child’s passport to the father’s lawyer’s office.
Is the father’s request valid?
The first thing the court had to do was determine whether it had the jurisdiction to make the order since the father is not a resident of Ontario. Neither Lebanon or the United Arab Emirates are signatories to the Hague Convention. Canada is a member of the Convention, which outlines how situations such as this are handled. However, the court was able to turn to the Children’s Law Reform Act, which can also apply. Section 40 of the Act states,
“Upon application, a court, (a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or (b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42, may do any one or more of the following:
1. Make such interim order in respect of the custody or access as the court considers is in the best interest of the child.
2. Stay the application subject to, i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal; or ii. such other conditions as the court considers appropriate.
3. Order a party to return the child to such a place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.”
The court’s responsibility stemming from the Act is to promote the child’s best interests, allow her to have contact with both parents, and ideally return the child to the situation she was in prior to the abduction.
The court determined it was within the child’s best interest to grant all of the requests being made by the father, particularly since Lebanon and the UAE are not signatories to the Hague Convention.
Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. In addition to a comprehensive family law kit that all clients are given during their initial consultation, we also offer live webinars on divorce in Ontario and quarterly “Ask the Lawyer” live webinars. To help you maintain positive mental health during a difficult period, we also offer our clients a free consultation with a psychological professional.