Kubera v. Kubera

This case from the British Columbia Court of Appeal provided guidance on the “now settled” exception in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.

Facts of the case

The appellant, Mr. Andrzej Kubera married the respondent in 1999 and they lived together in Poland until August 10, 2003. On August 10, Ms. Kubera took their three year old daughter J.K to Canada on a three month vacation. Ms. Kubera never returned to Poland, rather she began living with a new man and became common-law spouses in 2004. Ms. Kubera successfully claimed refugee status for both herself and her daughter, claiming Mr. Kubera had been physically, mentally, and sexually abusive towards her and J.K. It is unclear how much of this Mr. Kubera was aware of, but in 2005 Ms. Kubera sought an order in the BC Supreme Court for divorce and custody of J.K with specified access to Mr. Kubera. Mr. Kubera filed an application in Poland under the Hague Convention, and directed the Canadian Central Authority to return J.K to Poland on November 24 2005. By the time this came to court, J.K was ten years old, and had lived in Canada for seven years.

Article 12 of the Hague Convention

The crux of this case was whether or not the “settled” exemption in Article 12 of the Hague convention applied. The Hague convention states that:

Where a child is wrongfully retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

The British Columbia Court of Appeal combed through a large amount of case law, from a number of different countries. The court adopted a child-centric factual inquiry, as suggested first by Justice Cromwell (as he was then known) in the case of A. J.E. to determine if a child is “now settled” a court must consider their circumstances in light of the underlying objectives of the Convention, and in particular how ordering the return of the child is likely to further those objectives. The court listed four objectives:

  1. General Deterrence
  2. Need for Prompt Return
  3. Restoration of Status Quo
  4. Entrusting courts of place of habitual residence with determination of child’s best interest.

The court also determined that the circumstances should be considered at the time of the hearing.

Application to the Facts of the case

The court determined that in this case, J.K was settled in Canada, and should not be returned to Poland. The court determined that while Ms. Kubera was wrong to remove her from Poland in the manner she did, J.K had lived the majority of her life in Canada. She had friends, school and a settled life in British Columbia. The court argued that Ms. Kubera had not attempted to block Mr. Kubera’s rights under the Convention, and he could have begun a claim at any point. Thus the objective of deterrence did not apply. Further, the court found that the second and third objectives no longer applied in this case due to the passage of time. Finally, the court determined that due to the fact that five years had passed; the child’s best interests would be served by letting the court in British Columbia make the determination as to custody.

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