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CUSTODY AND ACCESS - Offences and penalties - Child abduction - Hague Convention

Tuesday, May 02, 2017 @ 6:59 AM  

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Appeal by the mother from an order requiring her to return the parties’ five-year-old daughter to Croatia. The parties lived in Croatia. The child was born in 2011. A Croatian court made a temporary parenting order in October 2012, entrusting the mother with the child’s care, and acknowledging that the father had a right to meetings and visits. The Court subsequently recognized that, while the mother was the most important figure in the child’s life, she had been unjustifiably preventing the father from having direct contact with the child. The father’s access times were set out in a court order with which the mother did not comply. The mother was warned by child welfare authorities that she faced protection proceedings if she did not provide the father with proper access. She instead left for Canada. She claimed she did so on the advice of a lawyer who said that it was her right to do so. The father claimed he learned of the move in a postcard the mother sent from the airport in April 2014. The mother had since worked in a bakery under a temporary foreign worker permit. In allowing the father’s application for the return of the child, the Chambers judge found that the child’s habitual residence was Croatia, that the mother breached the father’s custody rights by bringing the child to Canada, that the father had been exercising those rights when the mother left with the child for Canada, and that the child was not settled in Canada because her immigration status, as well as the status of the mother, was uncertain.

HELD: Appeal allowed. The child was wrongfully removed from Croatia to Canada, but had since “settled” in Canada as per Article 12 of the Convention on the Civil Aspects of International Child Abduction (Convention), displacing the idea that she should be returned to Croatia. The order of the Croatian court gave the mother nothing more than a right to have the child live with her. She had no right to unilaterally remove the child to Canada. The evidence of involvement of the Croatian authorities supported the father’s position that he was doing all he could to exercise access prior to the child’s removal, and that his attempts were being thwarted by the mother. The mother’s claim to have been abused by the father fell short of establishing that a return to Croatia would expose the child to physical or psychological harm. The child's connections with her Canadian environment were characterized by security and stability. She spoke English and had positive school, social and childcare connections. Both the child and the mother had obtained permanent resident status. Accordingly, there was no appropriate basis for the Court to exercise its discretion to order the return of the child to Croatia. The decision of the Chambers judge in relation to Article 12 was reversed. The child was not to be returned to Croatia pursuant to the Convention.

Ivakic v. Bacic, [2017] S.J. No. 106, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and G.R. Jackson JJ.A., March 17, 2017. Digest No. TLD-May12017006