In the recent case, Knight v. Gottesman, the parties appeared before Justice Shore of the Ontario Superior Court of Justice to resolve a matter under the Convention on the Civil Aspects of International Child Abduction, otherwise known as the Hague Convention.

Background

The parties married in August 2013 and separated in February 2019. They are the parents of two young children born in Canada. The family resided in Ontario until December 2018, when the family moved to Massachusetts to be near the father’s work. After the mother disclosed her intention to separate, she traveled to Toronto alone.

She then returned to Massachusetts to seek the father’s consent to take the children to Toronto for a visit. The father consented to a time-limited trip to Toronto, provided she return the children to Massachusetts. While in Toronto, however, the mother informed the father that she had no intention of returning the children to Massachusetts. The mother alleged that the father was physically and psychologically abusive, therefore threatening the safety of both her and her children.

In response, the father brought an emergency motion without notice in Massachusetts for the children’s immediate return. The Massachusetts Court stayed the proceedings because the matter needed to be heard in Ontario, where the mother moved her children.

Case Analysis

In Ontario, the court analyzed the case through the Hague Convention, pursuant to section 46(2) of the Children’s Law Reform Act. This law enforces custody rights and mandates the prompt return of wrongfully removed or retained children to their country of habitual residence.

Were the Children Wrongfully Removed or Retained?

In deciding whether the Hague Convention applied, the court needed to determine if the children were wrongfully removed from Massachusetts.

Pursuant to Article 3 of the Hague Convention, the Court asked:

1. If the removal/retention of the children breached the father’s rights of custody, as granted by the law of the State where the children were habitually resident immediately before the removal/retention; and
2. If those rights of custody were actually exercised, either jointly or alone, at the time of removal/retention, or would have been exercised if not for the removal/retention.

The mother claimed the children were habitually resident in Ontario. Even if they were habitually resident in Massachusetts, she argued, the father was not exercising custody rights at the relevant time.

Case Result

Regarding the children’s place of residence: Justice Shore held that, following the Supreme Court of Canada decision in Office of the Children’s Lawyer v. Balev, the Court needed to focus on the children’s family and social environment immediately prior to their removal or retention. In this case, the children were young and immersed in a family environment. According to the court, the parties decided to relocate as a family and establish a home in Massachusetts, thereby giving up their residence in Ontario. As such, the children were not resident in Ontario at the time of removal or retention.

Regarding the father’s custodial rights: The Court held that the father’s rights of custody included the right to care for the children and determine their place of residence. While the parties did not have a custody order or agreement in place, they both had obligations to care for the children when they were residing under the same roof. The mother’s request for the father’s travel consent demonstrated his right to determine the children’s place of residence. The father clearly did not consent to the children’s removal to/retention in Ontario.

Based on these factors, Justice Shore found that the removal/retention of the children was wrongful under the Hague Convention.

Do Any Exceptions Prevent the Return of the Children to their Habitual Residence?

Under Article 13(b) of the Hague Convention, a Court is not bound to order the return of the child if the parent who opposes the return demonstrates a grave risk of harm. In other words, if the child were to return, they would be exposed to physical/psychological harm or placed in an otherwise intolerable situation. The Hague Convention sets a high threshold in defining a “grave risk”. Per the Ontario Court of Appeal in Jabbaz v. Mouammar, the test is whether the situation is extreme, unbearable, or too severe to be endured.