Family

Child to be returned to mother in global abduction case

By April Cunningham, Associate Editor

The circumstances under which a child is removed from the home has a significant impact on whether the removal will be considered an abduction, as demonstrated by a recent motion successfully argued by Toronto family lawyers Michael Stangarone and Stephen Kirby.

In Daji v. Alnaser, Justice Philip J. Clay of the Ontario Court of Justice ruled a young child should be returned home to her mother in the United Arab Emirates after being abducted by her father to Canada. The case is now under appeal.

“The key point is the circumstances under which the child left the country,” says Kirby, associate with MacDonald & Partners LLP. “Even in the face of a pre-existing plan to immigrate to Canada, the circumstances of the abduction itself really made it difficult for anyone to believe there was any plan.”

According to evidence outlined in Clay’s decision, the father left the U.A.E. on a direct flight to Canada after midnight, and 40 minutes after sending a text message to the child’s distraught mother saying he was staying the night at his mother’s.

In their arguments, Stangarone, partner with MacDonald & Partners LLP, and Kirby cited case law stating that the surreptitious removal of a child would be evidence of there being no consent to a change in habitual residence.

“He had no explanation for why he would remove the child that way,” Kirby tells AdvocateDaily.com. “That really seemed to be fatal for him.”

The judge commented the father’s actions had “all the hallmarks of a child abduction.”

Although the Syrian couple had earlier considered immigrating to Canada and had obtained permanent residence cards, that plan was abandoned, Kirby says. They returned to the U.A.E. — the father said temporarily, the mother said permanently — but it did not matter, he says.

“That was the last time they had been in one place by any sort of agreement, whether it was temporary or not,” Kirby says. As cited in the case law, the state where both parties lived together is considered the habitual residence of the child, something that cannot be unilaterally changed without “the expressed or implied consent of the other parent.”

Although the U.A.E. is not a signatory to the Hague Convention, an international treaty that deals with expedited processes for child abduction, similar principles applied, Kirby says.

“The difference was more in the process,” he says. “There was no Hague hearing, which is to be expedited and decided on a summary basis. This all had to be done on a jurisdictional motion.

“If we were dealing with a country that was a signatory to the Hague Convention, we could have initiated a Hague application which would have stayed the father’s custody application he brought in the Ontario court and proceeded on an expedited basis. Because this wasn’t the case, we had to bring an urgent motion prior to a case conference within the father’s court application seeking an order that the Ontario Court decline jurisdiction and send the child home to her mother."

Other challenges in the case included working with a client who was living in the U.A.E., nine hours ahead of Eastern Standard Time. Although her English was good, some witness testimony had to be translated.

The mother was also dealing with two other significant matters: custody and access proceedings in the U.A.E. as well as her own immigration issues.

The respondent’s counsel had argued that Kirby’s client would not be able to stay in the U.A.E. without her ex-husband’s sponsorship, which would force the mother and child to return to war-torn Syria.

However, the ex-wife was able to obtain an order allowing her to transfer her visa in the U.A.E. without her husband’s consent, which was important to the case, Kirby says.

He explains the case is a good example of how to deal with abductions with countries that are not signatories to the Hague Convention, which adds a level of complexity.

“We had to make sure the wife was contesting the jurisdiction at every step and therefore not attorning to the jurisdiction of the Ontario Court,” Kirby says. “We also utilized the provisions of Ontario’s Children’s Law Reform Act in securing the return of the child to her home given that Article 12 of the Hague Convention (which mandates the immediate return of a wrongfully removed child) was not available."

In a subsequent costs award, the father was ordered to pay more than $36,000, as well $3,000 in travel costs to allow the mother to travel back to Ontario to retrieve the child.

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