The Hague Convention and Relocation to Ontario without Consent
Solem v Solem
This is an interesting case involving a Norwegian father’s application under the Hague Convention to have his children returned to Norway after their mother relocated them to Ontario without his consent.
The Solems are Norwegian citizens who married and bore their four children in their home country of Norway. When the couple divorced in 2011, they agreed to joint custody with the kids living with the mother. Soon after separation, she requested the father’s permission to take the children to visit family in Ontario. He gave limited consent for the vacation via a notarized travel consent form. It was later discovered that the mother had lied about the purpose of the trip and falsified the travel consent to grant permission to permanently relocate the children to Canada.
Within a month of the discovery, the father initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction to have his children returned to home. Pursuant to Article 3, the mother keeping the children in Ontario without the father’s permission was a wrongful breach of his rights under the Norwegian custody order. Since the children were wrongfully retained in Canada for less than a year, the father could rightfully request the children’s return under the Hague Convention. The mother asserted that returning the children to Norway and the joint custody arrangement would be harmful to the children based on allegations that the father was abusive. Essentially, she was requesting that Ontario grant her custody rights to keep the children. However, Ontario courts do not have presumptive jurisdiction to make a custody order regarding a non-resident child.
Does Ontario Have Jurisdiction over a Norwegian Custody Matter?
Justice Turnbull overseeing the matter found that because the children had lived all their lives in Norway, they were not habitually resident in Ontario. Without habitual residence in Ontario, an Ontario court can only exercise jurisdiction over custody and access when the following six criteria under s.22(1)(b) of the CLRA are met:
- The children were physically present in Ontario at the start of the application for the order;
- There is substantial evidence concerning the best interests of the child available in Ontario;
- No application for custody of or access to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
- No extra-provincial order in respect of custody of or access to the child has been recognized by a court in Ontario,
- The child has a real and substantial connection with Ontario, and
- It is appropriate for jurisdiction to be exercised in Ontario on the balance of convenience.
Assessing the Criteria
There is no issue relating to an extra-provincial order for custody or access because no such order has been recognized in Ontario.
The children were only present in Ontario because the mother relocated them under the false pretense of a vacation. There was also no substantial evidence about the children’s best interests accessible in Ontario. Any such evidence was most readily available in Norway where the children lived their entire lives, built their social networks, attended school, and have relatives, friends, and teachers. The Norwegians could provide more substantive knowledge of the children’s lives and their parents’ ability to meet their needs than the recent acquaintances in Ontario.
While the mother has stated that the children are happy and doing well in an Ontario school, the kids lacked a real and substantial connection with the province; they have only spent a few months in Canada compared to their entire lives in Norway. Any ties to the community they developed as a result of time passing before the court date was insufficient to satisfy this criterion.
In examining the balance of convenience, Justice Turnbull considered the location of the most relevant independent evidence related to the matter. The jurisdiction where this evidence is most easily accessible tends to be the most convenient. Justice Turnbull naturally thought it unreasonable to require the essential witnesses residing in Norway to travel to Ontario to testify in a custody trial.
Given that the overall circumstances failed to satisfy the CLRA’s criteria to exercise jurisdiction, Justice Turnbull decided that Norway was the most appropriate venue to deal with these custody and access issues. He ordered the children to be returned to Norway and the existing joint custody arrangement so that the Norwegian courts could dispose of the matter.