When a child is spirited away from Canada and relocated to a different country, the courts must consider the provisions of the Hague Convention on the Civil Aspects of International Child Abduction in determining whether the child should be ordered returned to Canada or remain in the country to which they have been relocated.
In this blog, we explore the operation of the Hague Convention in terms of to whom it applies, the scope of its applicability and how courts must embark upon any analysis it engages.
Wife Takes Child from Turkey to Canada, Never Returns to Turkey
In a recent decision of the BC Supreme Court, the court was asked to consider a circumstance that involved international child abduction. Specifically, the petitioner in the case is a Turkish citizen who lives in Turkey. The respondent is a Canadian citizen who resides in Canada. The parties met online in October 2021, after which they met in person and married in December 2021 in Turkey. The couple remained in Turkey after their marriage and had a child together in March of 2023, who was born in Turkey.
Following the birth of their child, the parties planned to relocate to Canada permanently. As such, and on the advice of an immigration specialist, the respondent’s wife and the child relocated to Canada in November of 2023 to secure housing and employment and file an application to sponsor the husband to come to Canada. It eventually became clear to the petitioner that his wife had not filed the sponsorship application. Upon her return to Canada, the wife testified that she realized that she could not meet the financial requirements necessary to sponsor her husband’s application, so she never embarked on the sponsorship process. Unfortunately, she did not advise her husband of her decision and merely reduced the amount of contact and communication with him.
As such, in August of 2024, the petitioner contacted the Turkish consulate in Canada, sought legal advice from an immigration lawyer and commenced this proceeding seeking the return of his child from Canada to Turkey. The crux of this decision involved the determination of whether the child had been wrongfully removed to or retained in Canada, in violation of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
Purpose, Scope and Applicability of the Hague Convention
To determine whether a child has been wrongfully removed from the custody of a parent or legal guardian and displaced to a different country in violation of the Hague Convention, the court must first ascertain whether the countries involved in the alleged abduction are signatories to the Hague Convention. That hurdle was easily cleared in this case, as Turkey and Canada are the Hague Convention contracting states.
The purpose of the Hague Convention is twofold: to ensure that the custody and access rights granted in one contracting state to the Convention are respected in every contracting state and to secure the rapid return of children who have been wrongfully removed or retained in any other contracting state.
It is important to note that orders issued by the Hague Convention are not custody orders but rather constitute orders intended to restore the parties to the status quo as they existed before the removal of the child to another country. As such, the determination of applications under the Convention does not include consideration of the child’s best interests, as that analysis is more appropriately conducted in a custody hearing. Rather, the court considers where the child was habitually resident immediately before relocation to the contested country. If the child is determined to have been habitually resident in the country to which the petitioner seeks their return (in this case, Turkey), then the court is bound to order the child’s return to that country unless an exception applies. Exceptions to the rule include consent or acquiescence to the child’s removal by the parent or guardian seeking the child’s return.
Significantly, if the court finds the child’s habitual residence to be a country other than that to which the petitioner seeks the child’s return, then the Hague Convention is inapplicable, and the petition is dismissed.
How is Habitual Residence Defined for Purposes of the Hague Convention?
As the Hague Convention does not define the term ‘habitual residence,’ the court has developed a hybrid approach to this analysis that entails consideration of the family and social environment enjoyed by the child immediately before removal, the child’s links to and living/social arrangements in each country, and the circumstances that led to the removal of the child from one country to another. In evaluating these criteria, courts consider the child’s nationality, age and the circumstances in which the child travelled to the new country before the removal that engendered the petition (such as how long such visits endured, why they were undertaken in the first place, and the regularity with which they occurred).
The court will also consider each parent’s circumstances and intentions regarding the situation in deciding the appropriate habitual residence.
This holistic approach ensures that the court considers the entirety of a child’s circumstances and does not rigidly apply laws or regulations in a fashion that forgets that the child’s well-being is paramount in such applications.
Definition of Date of Removal from One Country to Another
Following the roadmap established in previous case law, the court first determined the date of the alleged wrongful retention. As the child had been removed from Turkey to Canada with the father’s permission, the date of his actual departure was irrelevant. Rather, for the purposes of this application, the court determined that the appropriate date was when the father took his first steps to seek the return of his child to Turkey. In this case, that was noted as August 11, 2024, the date the father filed this petition.
Determination of Habitual Residence Prior to Date of Removal
The court noted that the child spent the first 8 months of his life in Turkey and the next eight months of his life in Canada. Despite this relatively even split in time spent in both countries, the court was led to conclude that the child’s habitual residence immediately before August 11, 2024, was British Columbia, Canada, largely because the child’s social links and circumstances in Canada outweighed his social links and circumstances in Turkey.
In particular, the court noted that the mother had lived most of her life in Canada, where all her family and friends lived. Moreover, the mother and child had lived in a rental unit in her parents’ home since their return to Canada and benefitted from close relationships with the mother’s parents, siblings, grandparents and other relatives, many of whom had provided significant assistance and child care to the mother and child since they had returned to Canada. The child was also enrolled in a BC daycare, spending approximately 35 hours per week.
The court also noted that in terms of the removal of the child from Turkey, the mother only brought the child to Canada with the permission of her husband and sponsored the husband so that he could eventually join the entire family in Canada. The mother had followed appropriate legal guidance in relocating first to establish residency and file an application for sponsorship of the father until she realized that her plans were unrealistic and that she could not afford to support a sponsorship application.
In these circumstances, in which the child had not visited Turkey in quite some time and was unlikely to remember the connections he may have made there, he was immersed in his life in Canada, where he was cared for by familiar family members, including his mother, maternal grandparents and daycare workers whom he had come to know, the focal point, and consequently the habitual residence, of the child immediately before the deemed date of removal, was BC Canada.
Given the court’s conclusion regarding habitual residency, it had no choice but to dismiss the father’s petition to have the child relocated to Turkey.
Vancouver Family Lawyers Advising Parents On Relocation Matters Across Canada And Internationality
If you are going through a divorce and facing decision-making (custody) issues regarding the mobilization or relocation of any children of the marriage, then you need experienced and thoughtful legal advice to ensure that your rights are properly asserted and protected throughout any legal proceeding. Fortunately, the Meridian Law Group is here to help. Contact us today, either online or by phone at (604) 687-2277, and we will be pleased to schedule a confidential consultation.
