If a parent removes a child from a jurisdiction without the consent of the other parent or without the proper relocation proceedings that authorize such, a court may intervene. If the matter involves countries that follow the Hague Convention, a parent may apply to the court for the child’s return if it is found that the other parent wrongfully retained them.
In a recent Alberta decision, DIH v. SIH, 2023 ABKB 146, the court found that a child was wrongfully retained after they were not returned to the father in Romania following a trip with the mother to Canada. In this post, we will discuss the circumstances of the case to highlight how the court came to its conclusion. This post will provide important takeaways for those involved in international custody and Hague application matters.
The parties have a four-year-old child. Before and after the separation, the parties lived in Romania together with the child.
The parties settled their divorce, parental responsibilities, and child support in Romania. The parties would jointly exercise their parental authority over the child. The child’s primary residence was with the mother, and the father would have regular parenting time with the child. The parties would share in the costs of child support. Notably, their settlement included a term that the child’s residence would not be changed without the other’s consent.
The mother remarried shortly after the divorce. Her new partner lived in Edmonton with his two children from a previous relationship. The mother intended to travel to Alberta with the child to visit her new partner. The mother had also discussed possibly moving to Canada permanently to reside with her new partner.
The father claimed that the mother assured him that she had not made a final decision about immigrating to Canada, as she wanted to visit first. The father had also refused to consent to the mother travelling with the child to Canada for 3 months, as he was available to care for the child while the mother visited her new partner in Edmonton.
For the mother to go on her trip, she was required to seek a declaration of consent from the father.
The Romanian Court made an interim order for the child to go to Canada for three months, which was not intended to decide where the child should ultimately reside. The Romanian Court also found that as the mother was the child’s primary caregiver, it would not be in the child’s best interests not to go with the mother to Canada. Also, if the mother kept the child in Canada for longer than the authorized three months, the father could apply under the Hague Convention for the child’s return. Ultimately, the father was ordered to consent to the travel forms for the 3-month trip to Canada.
The father allegedly signed two declarations. The first declaration stated that he consented to the child travelling with the mother for three months. The second declaration stated that the father consented to the child immigrating to Canada with the mother.
After the father was unsuccessful in his court application and appealed before the courts in Romania to have the child returned, he applied in Alberta to have the child returned based on the Hague Convention regarding wrongful removal of a child.
In the DIH case, the court noted the following objectives of the Hague Convention (at para 24):
 The objectives of the Hague Convention are to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in other contracting states. These objectives are intended to serve several purposes. Protection against the harmful effects of wrongful removal on children; deterrence of parents from abducting children by depriving the removing parent of any advantage they might have otherwise gained by the abduction; and allowing parenting disputes to be determined in the most appropriate forum, which is the jurisdiction where the child was habitually resident: Office of the Children’s Lawyer v Balev, 2018 SCC 16 at paras 24 & 27; CB v BM, 2021 ABCA 266 at para 26.
The court had jurisdiction to apply the Hague Convention in this case, as the countries involved were both contracting countries, Canada and Romania.
The court found that the child’s habitual residence remained in Romania, as the mother would only take the child to Canada for three months. While the court recognized that the child had now been in Canada for 15 months and was settling into her new life in Canada, it would go against the Hague Convention’s purpose of allowing a parent to rely on the new status quo to support a wrongful removal of a child.
The court noted that the Romanian settlement order included a term that the child’s residence would not be changed without the parties consent. The court also found that the father had custody rights, as he was permitted to exercise all parental entitlements and responsibilities other than primary care, which were to be unrestricted according to the wording of the Romanian order.
The court also found that while the father had signed a document stating that he understood that the child might be permanently removed from Romania, he claimed that the mother had assured him that she would return the child after the 3-month trip. The court also accepted the father’s evidence that he had previously refused even the 3-month trip, so it was unlikely that he would suddenly change his mind and consent to a permanent move to Canada for the child.
The court made a negative inference about the mother’s credibility, as it appeared that she procured two different declarations from the father for different intended uses before the Romanian border authority (that the trip would be three months) and Canadian immigration services (that she was permanently immigrating with the child).
Ultimately, the court ordered the child’s return within 45 days of the order. The court clarified that it was not making an order to change the child’s primary residence but rather ordering the child to return to Romania so that proper relocation proceedings could be held in Romania. There was also no evidence that the father could not care for the child in the meantime, so the order would not put the child’s care at risk.
When a child is wrongfully removed from a jurisdiction, this can be a complex and serious matter that requires a timely response. Our family law lawyers at Mincher Koeman are experienced in assisting parties with international custody and Hague application matters. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children after divorce.
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