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We’ve blogged in the past about the Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”). The Hague Convention is an agreement amongst a number of countries to deal with how a child’s abduction from one country to another participating country is handled. But what about when one of the countries involved is not a signatory to the Hague Convention? A recent decision from the Ontario Superior Court of Justice looks at how Canadian courts can handle such situations.
The children in Tunisia
As described in the decision from an earlier trial on the same matter, the parents were married in 2005 in Tunisia and lived together in Toronto from 2006 until their separation in 2018. The parties had two children together, who as of this summer were 11 and 5 years old respectively.
The parents signed a separation agreement dated June 29, 2019. It stated that the father would return to Tunisia in September of that year, but that the mother would continue to live in Toronto with the children.
The agreement also stated that the children would fly to Tunisia for a visit with their father on March 11, 2020. They went on schedule, but did not return home as planned on March 28. The father’s position at the time was that COVID-19 was preventing them from returning home. The father failed to deliver the children to three flights arranged by the Canadian government to bring Canadians home from Tunisia.
At that time, the court noted that both Canada and Tunisia were parties to the Hauge Convention. As a result, the court did not make an order for their return. Instead, the mother should have made an application under the Hague Convention for their return.
The wrinkle
Complications arose when it was discovered that Canada had not yet declared its acceptance of Tunisia’s recent accession to the Hague Convention. As a result, the mother was not able to apply to have them sent home under it. As a result, she returned to the courts to seek assistance.
The court noted that in the meantime, the father had commenced a proceeding in Tunisia for a divorce and for interim sole custody of the children. The mother attended this hearing and brought with her the interim order from Canada. As a result, the Tunisian court adjourned its hearing pending the outcome of the trial being discussed today.
The court stated that since the Hague Convention was not in force, the Children’s Law Reform Act gives courts the power to grant a temporary order for the return of the children if the court finds the children are “habitually resident in Ontario at the commencement application for the order.”
In this case, the court noted that the children were born in Toronto and had lived their all their lives before visiting Tunisia. The court ordered they be returned home and directed “that the Royal Canadian Mounted Police, the Ontario Provincial Police and the Toronto Police Service take whatever steps they deem appropriate, if any, to support the enforcement of the return of the children to Toronto, Ontario, Canada in accordance with this Order including liaising with the International Police Organization (INTERPOL) and police organizations in Tunisia.”
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