Son returned in child abduction case
By AdvocateDaily.com Staff
Stangarone, partner with MacDonald & Partners LLP, acted for the successful father in the case, which was recently heard in Brampton, Ont. where the mother had fled with the former couple’s one-year-old child.
“My client is pleased with the result because he had his son returned home,” he says. “We believe that the judge reached the right decision.
“It was difficult for the father because he had to find a lawyer in Canada and didn’t understand or have knowledge of the process involved in an international child abduction case,” adds Stangarone, who frequently litigates child abduction matters under the Hague Convention, which both Canada and the U.S. are signatories to.
According to the decision, the pair began their on-off relationship over social media in 2014, but the mother moved in with the father and his family while completing an internship in Pennsylvania in 2015.
Although the child was born in Brampton, the parties agreed that the couple and their new child would reside together south of the border from a few weeks after his birth until January 2018. That’s when the mother packed up and left with the child while the father was at work.
He sued in Canada under the Hague Convention to have the boy brought back to the U.S., arguing that his home in Pennsylvania was the child’s habitual residence. The mother claimed the Pennsylvania move was only made on a trial basis but the judge sided with the father.
“Even if I accept that she was in Manheim on a trial basis ... one party cannot unilaterally remove the children. The fact that a move may have been made conditionally is only one of the factors to be taken into account,” the judge wrote.
“I find that when the mother returned to Manheim, Pennsylvania, three weeks after [the child’s] birth, she intended to reside in Manheim with [the child] and with the applicant. There is no evidence to support her position that she was manipulated into moving to the United States. Even if there was, the fact that [the child] was resident with the parties, who lived together in Pennsylvania, for ten months prior to the removal to Brampton, is determinative.
"Thus, Manheim, Pennsylvania is the habitual residence of the child,” the judge added, before rejecting the mother’s claim that the father had consented to her departure.
The case was one of the first Hague Convention decisions issued since a landmark Supreme Court of Canada ruling from earlier this year, which changed the test for determining a child’s habitual residence. Mr. Stangarone was counsel in that case at the Ontario Divisional Court level.
In that case, a 6-3 majority of the top court adopted a “hybrid approach” — combining the settled parental intention approach with a child-centred approach.
"It's a more holistic test," explains Stangarone, who says the SCC's judgment was actually issued while his client’s case was ongoing, adding an extra layer of complexity to the process.
“It changed the way we argued the case before the judge because we had to show where the focal point of the child’s life is,” he says. “I think the right decision was reached.”