In Farsi v. Da Rocha, 2020 ONCA 92A, the Ontario Court of Appeal considered the appeal of a decision to deny an application under the Hague Convention on the Civil Aspects of International Child Abduction also known as the Hague Abduction Convention. The Hague Abduction Convention is a treaty that Canada and other nations are signatories to that governs the rules for a return of a child abducted by a parent to another country by a parent.
The Hague Convention prescribes that a removal of a child is “wrongful” if:
a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
In Farsi v. Da Rocha, the trail judge found that the child was raised in Toronto by both parents until the she was six months old. The mother then took her to France for four months. The father then travelled to France and brought the child back to Ontario.
The mother claimed the father abducted the child and brought the application in Ontario to have the child returned to France. The father claimed the mother abducted the child to France.
The trial judge stated that the child’s habitual residence remained in Ontario even though she had lived in France for three months. Because the child was habitually resident in Ontario, the Hague Convention did not apply and as such the trail judge dismissed the Application.
It is important to have a lawyer that understands your Hague Convention Application, civil child abduction, and/or child custody and access dispute. It is important to get legal advice early, as in the above case the Court will look at each of the parents’ actions to determine the intent of the parties.
If you have questions about a Hague Convention Application, or your rights and obligations relating to child custody or access contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820. We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River and Lakeshore, and throughout southern Ontario.