Situations where parents separate or divorce and go on to live in different countries can be extremely difficult to navigate, especially when it pertains to matters of custody and access. Occasionally these situations can lead to instances of child abduction, where one parent removes this child or children from their home country without the consent of the other parent. Canada is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction, which was incorporated in Canada as the Children’s Law Reform Act (“The Hague Convention”). The Hague Convention requires children to be returned to their normal place of residence. However, a defence to this can be raised if it can be demonstrated that the child or children face grave risk of harm if they were to be returned. A situation such as this was recently heard by the Ontario Superior Court of Justice.

The facts

The parties were married in Canada in 2008. The father is a Norwegian citizen, while the mother is a Canadian citizen. Their two children have citizenship in each country. The family relocated to Hong Kong where the father was offered a job as an Assistant Professor of biology, on tenure track, at a university. The mother decided to work out of the home, caring for the children.

The parties began to experience matrimonial discord prior to moving to Hong Kong. The issues of conflict included those concerning the relationship as well as finances. None of their problems involved child welfare authorities or the police.

The summer of 2018

During the summer of 2018, the mother and children travelled to Canada to spend time with the mother’s family. The husband did not accompany them as originally planned due to finances and work. The mother and children returned to Hong Kong in August 2018, but the parties’ problems persisted.

In the early morning of September 20, 2018, the mother left the home with the two children, telling the father they were going for a walk. This followed an incident where the couple disagreed over how to deal with one of the children’s persistent crying following a nightmare.

After leaving the apartment, the mother met up with her sister, who had travelled to Hong Kong. They visited a lawyer’s office as well as the Canadian Embassy. The mother and children left Hong Kong for Ottawa the next day (September 21) and informed the father of what happened on September 22.

The father and mother kept regular communication from the date of separation up to the date of the trial, however, a resolution was not found and the father commenced proceedings to have the children returned to Hong Kong.

Admissions

Before the trial took place, the parties agreed to a number of admissions, including that Hong Kong is the children’s habitual residence, and that the children were removed wrongfully from Hong Kong, wrongfully retained in Canada, both of which are breaches of the father’s rights of custody.

The Hague Convention

Article 12 of the Hague Convention states,

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of 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 Hague Convention, Article 12).

However, a defence is available in some situations. Article 13 of the Hague Convention states,

Despite the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(a)        …

(b)        there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.  In considering the circumstances referred to in this article, the judicial and administrative authorities shall take in to account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

The mother relied on Article 13, asking the court to find there is a grave risk that returning the children to Hong Kong would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.

The court’s analysis

The court’s analysis began with the case law relating to the grave risk of harm defence. The test requires that the risk the children face must be “grave”, “weighty”, and “severe.”

The court mentioned that the evidence presented by the parties shows that their marriage is unhappy and stressful, but the judge found,

“I am not convinced on all of the evidence and on a balance of probabilities that the stringent test mandated by Article 13(b), that these children, if returned to Hong Kong, would be exposed to physical or psychological harm. There is no evidence of the father physically or psychologically abusing the children.  His communications with the children since they have been in Canada are appropriate and loving and do not demonstrate fear on the part of the children.”

The court ordered the children to be returned to Hong Kong. Additionally, the father was required to help the mother obtain a visa to continue living there while he is employed with the university.