Family

Judge slams Polish court for failing to adhere to Hague Convention

In a ruling dismissing a motion to review a couple’s divorce order, an Ontario Superior Court justice recently rapped Polish courts for misapplying international child abduction laws, says Toronto family lawyer Michael Stangarone, a partner with MacDonald & Partners LLP.

In Nowacki v. Nowacki ONSC Number 973, Justice David Price refused the wife’s request to set aside a divorce order obtained by the husband, represented by Stangarone. The wife wished to obtain a similar order in Poland, where she took the couple’s nine-month-old son in 2011 and remains, despite orders from Ontario courts to return with the child.

In justifying her refusal to bring the child back to Ontario, the wife referred to a decision of the courts in Poland, which relied on the Hague Convention on the Civil Aspects of International Child Abduction ground that returning the child would result in serious harm to him.

The Polish courts acknowledged that the wife abducted the child and that the husband poses no risk of harm to him, says the ruling, but they concluded that since the infant has health problems, it would cause serious harm to order his return, as it would separate him from his mother.

“Children do not derive their protection from abduction from the Hague Convention,” writes Justice David Price. “They derive it from the adherence of nations that are signatories to the Convention to its provisions and to the principles they embody. That adherence is a reciprocal obligation. The failure of the courts of any nation to recognize the proper role of another in the protection of an abducted child weakens the network of protection that exists for all abducted children.”

The treaty is intended to “achieve a shared purpose,” says the judgment.

“Neither Canada nor Poland, by becoming a signatory to the Convention, surrenders its autonomy, or the duty each has to protect the rights of children who are habitually resident within its borders,” the ruling states.

The wife argued that Ontario courts must respect the decision of their Polish counterparts not to return the child, while the husband contended the woman is in contempt of court orders and Canadian courts have authority under the law to require the child’s return.

Poland’s interpretation of the Hague Convention is incorrect, says the ruling, as its "severe harm" argument was intended to be “reserved for cases where conditions in the requesting country, with all the protections that its courts afford, would still leave the child at risk of severe harm.

“By interpreting this provision in a way that is indistinguishable from a determination of (the child’s) best interests, and especially by equating a freedom from severe harm as a separation of (the child) from his mother, who abducted him to Poland and chooses to remain in that country in continued contempt of this court, which required her to return him, have arrogated to themselves the determination as to (the child’s) best interests,” writes Price.

“A decision that equates a risk of serious harm with returning (the child) to Ontario where his father resides, is repugnant to the objectives of the Convention and to the objective it serves, namely, the protection of all children who are at risk of international abduction,” Price continues.

“The courts in Poland acknowledge that (the husband) was a good father and that he represents no risk of harm to (the child). Additionally, this court would make a careful determination as to (the child’s) needs, and as to which of his parents is best able to meet them.”

Permitting the mother’s motion to proceed “would amount to a dereliction” of the court’s duty to the child and reward her disregard of his best interests, including his right to have a meaningful relationship with both his parents, says the ruling.

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