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CUSTODY AND ACCESS - Child abduction - Hague Convention

Friday, March 27, 2020 @ 9:32 AM  


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Appeal by the mother from a decision dismissing her application for return of the parties’ child to France under the Hague Convention. The child was born in Ontario and raised there until October 2018 when she was 6 months old. At that time, her mother, a French citizen, took her to France. In February 2019, the father travelled to France and brought the child back to Ontario. The mother continued to reside in France. She alleged the child was habitually resident in France in February 2019 and had been wrongfully removed to Canada. The mother claimed she relocated to France with the child in October 2018 with the father’s full knowledge and consent after their relationship terminated. She claimed she agreed to permit the father to take the child to Ontario in February 2019 for a one-month visit but he then refused to return the child. The father claimed the mother took the child to France with his consent for a two-week vacation but then refused to return to Canada. The application judge found the child was habitually resident in Canada until October 2018 when the parties’ relationship ended. She found that the father gave the mother permission to take the child for a short vacation to France and that the child was wrongfully retained in France, that both parents were exercising custodial rights at the time that the mother wrongfully retained the child in France, that the child’s habitual residence did not change in the four months in which she was retained in France and the child’s habitual residence remained Canada.

HELD: Appeal dismissed. The application judge did not err in finding that to determine the child’s habitual residence immediately before the alleged wrongful removal in February 2019, she was required to look at the entirety of the child’s situation which included her habitual residence in October 2018 and the circumstances under which she remained in France after that date. In so doing, the application judge was not deciding the wrong issue and time frame. The application judge did not err in concluding that the child’s habitual residence remained in Canada. Her finding was not based on a misguided understanding of the role that one parent’s unilateral actions might play, but on the lack of information about the child’s life, ties and circumstances from October 2018 to February 2019. The application judge also considered parental consent. Given the paucity of evidence about the child’s circumstances in the relevant period, the application judge did not err in concluding that she was unable to conclude that the child’s habitual residence had changed to France. While the application judge largely accepted the father’s version of events, it was not correct to say that she did so simply because she found him credible.

Farsi v. Da Rocha, [2020] O.J. No. 499, Ontario Court of Appeal, E.E. Gillese, P.S. Rouleau and J.M. Fairburn JJ.A., February 6, 2020. Digest No. TLD-March232020010