Temporary Order in Child Abduction Case not Covered by the Hague Convention

Mark Feigenbaum

An Ontario court recently granted a temporary order against a mother who had wrongfully removed her daughter to Ontario after the father feared she would move the daughter to Lebanon against his wishes.

What Happened?

The couple have a six-year old daughter, who is a citizen of the United Kingdom; she was born in Canada and was moved to England when she was about three years old. Her mother is a Canadian citizen and the father is a citizen of both Saudi Arabia and the United Kingdom.  

In late 2012, the parents began living together in London, England. The daughter was born in June 2013 and the parents separated a few months later. In September 2013, a court in England prohibited the mother from removing the daughter from England and Wales. In November 2015, a court in England granted custody of the daughter to her mother and gave the father access three times each week. The court also ordered that the daughter could not be removed from England without a court order or the consent of both parents.  

In November 2015, the father moved to Dubai in the United Arab Emirates. In April 2018, the mother and daughter moved to Dubai where the daughter and her parents then lived together. In March 2019, the father moved out of his apartment. 

On May 30, 2019, the mother took the daughter’s passport from the father’s apartment. Within a week, the mother took the daughter to Lebanon. By mid-June, the mother travelled with the daughter to Toronto where the mother has family.  

As a result, the father sought an expedited motion date for the return of the daughter to her habitual residence. He contended that Dubai was the daughter’s habitual residence. Additionally, on the grounds that the mother was a safety risk and a flight risk, the father sought a temporary order directing the mother to not remove the daughter from Toronto without a court order and to deposit the daughter’s passport with the father’s lawyer for safekeeping. Specifically, the father was concerned that the mother would try to remove the daughter from Toronto to Lebanon.

Decision

In many cases, international child abduction cases are governed by the  Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention”), which provides a process, between signatory countries, for the return of an abducted child to that child’s country of habitual residence.

Although Canada and the United Kingdom are signatories to the Hague Convention, neither the United Arab Emirates nor Lebanon are signatories. As a result, the court found that this case was governed by the Ontario Children’s Law Reform Act (“CLRA”). Specifically, s. 40 of the CLRA provides a court with several options when it is satisfied that a child has been wrongfully removed to Ontario. Section 40 states:

40.  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 interests 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 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.

Based on the evidence, the court found that the daughter had been wrongfully removed to Ontario given the unilateral decisions made by the mother to remove her from Dubai, where she had lived for about one year with both parents, to Lebanon and then to Canada. The 2015 UK Order had placed obligations on the parents in respect of access as well as travel outside of England.  

The court found that while the parents agreed to remove the daughter from England to Dubai, there was no evidence of an agreement between the parents, whether in writing or otherwise, for the mother to remove the daughter to Lebanon or Canada. Similarly, there was no evidence that the access provisions of the 2015 UK Order had been varied by agreement or by court order. Consequently the court found that the mother’s action in removing the daughter to Lebanon and subsequently Canada without the father’s consent failed to comply with these provisions. 

The court then found that, given the mother’s behaviour, the risk that the mother may remove the daughter to Lebanon and the fact that Lebanon is not a signatory to the Hague Convention, it was in the daughter’s best interests, particularly to ensure her safety and stability, to grant the temporary order sought by the father pursuant to s. 40(a) of the CLRA.

As a result, the court granted the temporary relief sought by the father.  

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.