Nowlan v. Nowlan: The “Now Settled” Exception of the Hague Convention

In Nowlan v. Nowlan, Justice Fraser of the Ontario Superior Court of Justice considered whether an exception within the Hague Convention could allow for a child to remain in Ontario despite being wrongfully removed from Virginia.

Background Information

The parties involved in this case are a former couple who married on December 31, 2014 and separated in November 2016. The former couple has a 4 year-old child together who was born in Virginia in 2015. The father is a member of the Canadian Armed Forces and is currently posted in Petawawa, Ontario. The mother is a veteran of the United States military who lives in Virginia. During the mother’s pregnancy, she attempted to move to Ontario in an effort to cohabitate with the child’s father. However, she was not permitted entry into Canada due to a prior conviction of impaired driving. The mother had a history of alcohol abuse that she overcame.

After the birth of the child, the mother resided with her mother in Virginia and the father took a paternal leave in order to live in Virginia. After his paternal leave was over, the father returned to Ontario and the mother moved to New York in an effort to keep the father and child in close contact. In November 2016, while the father was visiting the child in New York, he discovered the mother was continuing to abuse alcohol. He contacted the New York Child Protection Services who got involved in the situation along with the Virginia Child Protection Services.

In April 2017, the mother asked the father to take the child into his care. The parents met with social workers who agreed that the father could bring the child to Ontario while the mother worked on dealing with her substance abuse issues. Two months later, the mother asked for the child to be returned to her in New York, but the father refused. In November 2017, the father began an application for sole custody of the child. The mother, in turn, commenced her own petition for custody in Virginia, in January the following year. In addition to her petition, the mother also began a court order stating the child had been wrongfully taken by the father. However, she did not begin a Hague application requesting the child be returned until March 2019.

Analysis

The father conceded that retention of the child was wrongful but argued that, under Article 12 of the Hague Convention, the child had settled into her environment to the point that it was her home and the court should not order her return to Virginia.

Article 12 of the Hague Convention sets out the basic obligation to return a child who has been wrongfully removed or retained from the United States. If a Hague application was created less than 1 year after the date of removal, a court must order the return of the child. However, Article 12 also contains a ‘now settled’ exception, which states that if an application was created 1 year from the date of removal, the court will order the return of the child unless it’s demonstrated that the child is now settled in their new environment.

In some cases, the ‘now settled’ clause overrides an otherwise compelling need to protect children from abduction. For this reason, the court must look at the unique circumstances of each child in each case in order to come up with the most beneficial conclusion.

The mother argued that since the child was still very young, she did not have strong enough ties to the community in Ontario and should be returned to Virginia without disruption. While this may be true, the greatest factor in a case involving a young child is the relationship they have with their immediate family. In this case, the child is well-bonded to her father and is happy at his home in Ontario.

If the child is returned to Virginia, it would likely cause disruption and potential emotional trauma. While general deterrence is one of the purposes of the Hague Convention, deterrence is not a factor in this case. This is because the father was asked to bring the child to Ontario by her mother and had support from the child protective agencies in two states. The father understands the child would be at risk in the care of the mother and a return to status quo would not be possible since the mother’s care gives rise to protection concerns. Based on this assessment, the ‘now settled’ exception was invoked to allow the child to remain in Ontario.

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