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Canadian Court Again Plays Role in International Wrongful Removal of Children Case

By | - May 30, 2023

Steve Benmor is a recognized divorce lawyer, family mediator, arbitrator, speaker, writer and educator. Mr. Benmor has worked as lead counsel in many divorce trials, held many leadership positions in the legal community and has been regularly interviewed on television, radio and in newspapers as an expert in Family Law.

Another provincial appeal court follows the Supreme Court of Canada’s decision on the wrongful removal of a child in F. v. N., [2022] S.C.J. No. 51.

The courts continue to repeat the legal principles governing the wrongful removal of children and the roles that Canadian courts play in such international cases. It is clear that the globalization of families, the many domiciles that a family can have during marriage, and the holding of multiple citizenships and passports continue to plague the Canadian courts, which are faced with requests to order the return of children to another country and for claims regarding parenting to be decided elsewhere.

The Alberta Court of Appeal recently released a decision involving the return of two children to the United Kingdom in Osaloni v. Iyekekepolor, [2023] A.J. No. 349.

In this case, unbeknownst to the father, the mother snuck the children out of the bedroom window in the United Kingdom and flew them to Calgary. The children were 6 years old and 3 years old. The father quickly brought a court application to have them returned.

During the marriage, the parties had discussed moving to Canada. However, they separated beforehand. The children had not resided in the United Kingdom their entire lives; they had only been living there for the past two years. Before that, they were residing in Slovakia, where the mother had been studying medicine. The children held both Italian and British citizenships.

In the Canadian court, the mother defended the father’s application under The Hague Convention on a number of grounds. At the Court of Appeal, she argued:

  1. There was no abduction because the father consented to the trip;
  2. The lower court judge erred in finding the children were habitually resident in the United
    Kingdom; and
  3. The children were at grave risk of harm if returned to the United Kingdom.

The mother relied on events occurring since the order under appeal was granted. But the Court of Appeal maintained that what transpired after the order was granted was irrelevant to the appeal.

The mother argued that the father consented to the children moving to Canada, stating that they had
contemplated moving to Canada, applied for permanent resident status in Canada and for the mother
to take her medical licensing exams in Canada. The Court of Appeal repeated that the mother bore
the legal onus to establish clear and cogent evidence of unequivocal consent or acquiescence, and
that she failed to do so.

The mother argued that the children were habitually resident in Italy or Slovakia. The Court of Appeal
admitted that although a determination of a child’s habitual residence need not be their location
immediately prior to their removal, for the purposes of determining whether the removal or retention
of a child is wrongful, courts must consider where the child was “habitually resident immediately
before the removal or retention.” Under Article 3 of The Hague Convention, this is where the children
were attending school and accessing health care.

Lastly, the mother made a very interesting argument that the children would suffer grave risk of
harm if they were removed from her care because she had always been their primary caregiver. She
advised the lower court that she did not intend to return to the United Kingdom. The Court of Appeal
stated that the mother cannot satisfy the grave risk of harm exception in Article 13 of The Hague
Convention by virtue of choosing to no longer be the children’s primary caregiver. The court cited the
majority in F. v. N. that “courts should be prepared, in some circumstances, to order the return of
the children despite a risk of separation from their primary caregiver.

In the end, the mother’s appeal was dismissed, and the father flew to Calgary to pick up the children
and returned them to the United Kingdom.

These cases continue to remind us of the same principles that govern wrongful removal of children,
and serves as a roadmap for what parents can expect when turning to the courts to determine
whether a child will be able to remain in Canada, or ordered to be returned to their home country.

This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Click here to read the Law 360 Article.

At Benmor Family Law Group, our multi-disciplinary team of divorce experts fully understands the emotional and financial impact of divorce. We will help you through separation, divorce, mediation, divorce coaching, and parent coordination, our full-service family law firm expertly supports you, guides you, and represents you – throughout your case.

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