|December 8, 2009|
Previously published on Spring 2009
The issue brought before the Ontario Superior Court of Justice in this particular case was that involving the broad issue of whether the provisions contained within The Hague Convention applied to an eleven year old boy who was brought to Canada by his mother from Indiana, USA. More specifically, the Court was asked to determine whether Article 13 of the Hague Convention applied in this case to permit the child to remain in Canada notwithstanding that he had been wrongly removed from Indiana contrary to an Order of the Superior Court of Indiana. The portion of Article 13 relevant in this particular case permits a Court to refuse to order a child to return to his or her place of habitual residence where the child “objects” to being returned and where he or she is of an age and maturity that it is appropriate to take his or her views into account.
The parties were the “loving and competent” parents of an eleven year old boy. During the parties’ marriage, the family resided in the USA. The father is an American citizen, the mother is Canadian, and the son enjoys dual citizenship. Post-separation and pursuant to a Court Order, the parties shared joint custody of the child, with his primary residence being with the mother. The parties subsequently engaged in protracted litigation in the Indiana Superior Court over the issue of whether the mother would be permitted to relocate with the child to Ontario. The Court decided against the relocation. One month after the decision was handed down, the mother came to Ontario, bringing her son with her, to renew her driver’s licence. Upon her return to the USA, the mother encountered admittance problems at the border. Nevertheless, she was granted a 7-day humanitarian pardon to re-enter the United States. During this 7-day period the father obtained a temporary order restraining the mother from taking the child to Canada without his consent. When the mother was ordered deported from the United States, in violation of the Indiana Superior Court Order, she brought the child to Ontario to reside. Shortly thereafter, the father brought this Application in Ontario pursuant to the Hague Convention to have his son returned to the United States.
The mother argued that the removal of the child was not wrongful, and even if it was, the child should not be returned to the USA on the grounds that the child objected to the return and was mature enough to make this decision. The mother brought forward evidence from the child’s physician purporting that the child was happy with his mother and was mature enough to make this decision. The mother further argued that the child was prospering in Ontario, as he had done exceptionally well in school, was involved in extra-curricular activities and had made a number of close friends. Further, due to the deportation Order from the USA, the mother argued that she would be severely prejudiced in presenting her case in the USA if the Indiana Court was found to have jurisdiction over the matter. As a result, the mother was of the view that the father’s motion should be dismissed, and that she and her son should be permitted to reside together in Ontario.
After hearing the arguments, the court concluded that “it was clear that [the child] was habitually resident in Indiana immediately before his removal to Ontario”, that there was no question that the child was wrongly removed from Indiana by the mother, and that therefore, the Indiana Courts had the jurisdiction to rule on matters of custody, access and mobility.
Once a finding of wrongful removal is made, the Court must order the return of the child forthwith, subject to three exceptions outlined in Article 13. The exception most relevant in this particular case is the one involving the child’s wishes and objections to being returned. Although the Ontario Court decided that the evidence presented before it involving the child’s maturity was not substantial, it was prepared to accept that this portion of the exception was met. However, the court was not so satisfied when it came to the portion of the exception involving the “objection” requirement. To meet the “object” criteria, according to the Court, “it must be shown that the child displayed a strong sense of disagreement to returning to the jurisdiction of [his/her] habitual residence¿it must be something stronger than a mere expression of preference”. The test was not met in this particular case. Since there was only “scant” evidence presented to the Ontario Court on the issue of the child’s alleged objection to returning, and since according to the Court only a mere preference was offered by the child, it was unable to conclude that the child “objected” to his return to the USA. The evidence seemed only to suggest that the child would be content to stay in Ontario, not that he objected to being returned to Indiana.
As a result of the Court’s observations and reasons, a declaration was made that the child was wrongly removed from Indiana and was being wrongly retained in Ontario. The consequence of this being that the child would be returned to his habitual residence in Indiana after he completed his last day of the Fall term at his school in Ontario.