During a divorce, a number of legal issues arise, including dividing family property, establishing who pays spousal and child support, and parental decision-making responsibilities, if there are children involved. These matters may become infinitely more complicated when two different countries are involved. Sometimes, a party may leave Canada with their child or children and flee to another country to avoid the enforcement and obligations associated with orders of Canadian courts; alternatively, there are also cases where one spouse absconds from another country to live in Canada to avoid legal obligations and court orders that have been issued in the country in which the parties had been residing. The case under discussion herein, Virco v Laranjeira e Silva, provides an example of this latter circumstance: one party fled to Canada from another country to circumvent their home country’s legal system.
The Parties Meet, Fall in Love, and Marry in Brazil
The case of Virco v Laranjeira e Silva involved Lucas Virco and Alessandra Cristina Laranjeira e Silva, who met and were married in Brazil in May 2016. Both Lucas and Alessandra are citizens of Brazil, as is the only child of their marriage, Lorenzo, who was born in Brazil in July of 2017, during the tenure of the parties’ marriage. The parties legally separated in March of 2018. When Lorenzo was about three years old, in 2020, Allesandra brought Lorenzo from Brazil to Canada, in accordance with the authorization of the Brazilian court that she was permitted to travel with the child. However, Alessandra has never since returned to Brazil and intends to reside in Canada with Lorenzo permanently. Lucas petitioned the court for the return of his child to Brazil. The main issues at trial were whether Alessandra had wrongfully retained Lorenzo in Canada and whether the court should return the child to Brazil pursuant to Canada’s obligations under the Hague Convention.
The Authorization for Mother and Child to Travel to Canada
Shortly after they legally separated, Lucas and Alessandra commenced legal proceedings in the courts of Brazil with respect to their divorce and custody issues. Due to Lorenzo’s young age at the separation, the Brazilian courts awarded Allesandra “unilateral provisional custody.” However, Lucas was granted shared custody and an equal right to make decisions for and in respect of Lorenzo. Before her trip to Canada in 2020, Allesandra had sought and received permission from the court to travel with Lorenzo to Canada on several occasions, each of which applications were granted. Notably, Allesandra had returned to Brazil with the child after each prior instance of travel. In 2020, Allesandra decided to study English in Canada, so she applied to the court in Brazil for authorization to undertake the same. That court granted Allesandra an “Accompanied Abroad Travel Authorization” that allowed Allesandra to travel to Canada with Lorenzo and was valid until September 30, 2022. This order was issued against Lucas’ objections, as he did not want to be separated from his son for such a long period of time.
According to the travel authorization Allesandra received, she should have returned to Brazil with Lucas by September 30, 2022. Her failure to do so grounded this petition wherein Lucas argued that, as of October 1, 2022, Allesandra had been wrongfully retaining Lorenzo in Canada.
The Family Court Proceedings in Brazil
While Allesandra has been in Canada with Lorenzo, the family law proceedings between her and Lucas continued to move through the Brazilian courts. On August 31, 2022, the parties were ordered to have shared custody, with Lorenzo primarily resident with Allesandra. While Lucas was entitled to in-person parenting time with his son when Lorenzo was in Brazil, when Lorenzo was in Canada, Lucas could only contact Lorenzo through video chat. As noted above, since Allesandra failed to return Lorenzo to Brazil by September 30, 2022, Lucas has sought to have his child returned. To that end, he filed a proceeding in the Brazilian courts, and on June 21, 2023, the court ordered that Allesandra return to Brazil with Lorenzo within 15 days, failing which the court would fine her daily.
There were two more active proceedings before the Brazilian courts when this matter proceeded before the B.C. court: a case in which changes to the custody arrangement were sought and a case against Alessandra for non-compliance with previous court orders and wrongful retention of Lorenzo. Regarding this latter proceeding, the court decided on November 8, 2023, that “it will be up to the BC Supreme Court to determine if the Child should be returned to Brazil.”
The Hague Convention
As noted by the court, both Canada and Brazil are contracting parties to the Hague Convention, the objectives of which are “to secure the prompt return of children wrongfully removed or retained in any contracting state” and “to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.” The Hague Convention applies, by article 4 thereof, “to any child who was habitually resident in a contracting state immediately before any breach of custody rights and ceases to apply when the child attains the age of 16 years”. Since Lorenzo was 6 years old at the time of the proceedings, the Convention was thus applicable to him.
However, the parties disagreed on whether Lorenzo had been habitually resident in Brazil immediately before the wrongful retention. The court noted that habitual residence, for purposes of the Hague Convention, was to be determined by article three thereof, which directs a court to consider three criteria: the child’s link to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.
Application of the Hague Convention to the Facts of This Case
In this case, while there was evidence that Lorenzo had travelled to Canada with his mother before their quasi-permanent relocation, effectively having spent half of his life in Canada, the court was satisfied that Lorenzo was to be considered a habitual resident in Brazil. This is because the court determined that an order for “time-limited travel to another country,” such as the one Allesandra had obtained that allowed her to come to Canada with her son until September 30, 2022, does not and cannot displace a child’s habitual residence. Moreover, legal proceedings continued to go through Brazilian courts, indicating that Brazil had not relinquished oversight of this matter.
Regarding the circumstances of the move to Canada, the court noted that the approval order for this move was time-limited and not intended to be permanent. Moreover, the order had been opposed by Lucas, who did not wish for his son to travel to Canada for any length of time. Overall, the evidence supported the conclusion that when the initial travel order was issued, both parties intended that the child would return to Brazil with his mother no later than the expiry date of the order.
As for the third criterion, Lorenzo’s links to and circumstances in Canada, the court noted that Lorenzo had attended pre-school and elementary school in Canada and had a doctor. However, it was noted that the court order from Brazil, which had allowed Allesandra to take Lorenzo to Canada in the first place, specifically included a direction to Allesandra to provide parenting time to Lucas. At the same time, she remained in Canada to foster a relationship between Lucas and Lorenzo. The order did not eliminate Lucas’ custodial rights.
The Child is Ordered Returned to Brazil in Accordance with the Hague Convention
Following the findings above, the court determined that Lorenzo had been habitually resident in Brazil immediately before October 1, 2022, and that, at the time of the wrongful retention, Lucas had rights of custody under Brazilian law that he was attempting to exercise. Given these findings and the fact that Lucas had filed his petition within the one-year timeline dictated by the Convention, so it was that Article 12 of the Hague Convention dictated that the child must be returned to Brazil forthwith, subject to the application of any of the exceptions dictated by Article 13.
To that end, the court considered whether Allesandra had Lucas’s consent or acquiescence to remain in Canada with Lorenzo and concluded that she did not have such consent. Lucas had contested her decision to leave with Lorenzo and remain in Canada, and the evidence did not dispel this conclusion. Moreover, the court concluded that there was no risk of grave harm to Lorenzo if he returned to Brazil, as contended by Allesandra. That is because, despite allegations of violence made by each party against the other, the courts of Brazil had never made a finding that Lucas posed a risk to Lorenzo. Given that no exceptions were applicable, Allesandra was ordered under article 12 of the Hague Convention to return Lorenzo to Brazil no later than seven days after his passport was issued and/or she received any necessary travel documentation from Brazilian authorities.
The court further ordered that, upon his return to Brazil, neither party would be permitted to remove Lorenzo from the country without an order from a Federative Republic of Brazil court.
Contact the Family Lawyers at Meridian Law Group for Advice on Your Family Law Dispute
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