The new approach to Hague Convention Cases

Family law cases are increasing when it comes to the wrongful removal of children from the place they habitually live, likely in large part due to increasing mobility of families in a global community. Looking at the courts recently, there has been a definite shift to expand the law on how Hague Convention matters are dealt with.

In the recent Court of Appeal case of Zafar v. Saiyid, 2018 ONCA 352, the parties were married with two young children. They lived in England. In the summer of 2016, Qurratul Ain Saiyid took the children on vacation to Canada to visit her parents with her husband’s consent. In August of that summer, she informed Zafar that their marriage was over and that she would not be returning to England with the children. Zafar brought an application in Ontario, under the Hague Convention. Saiyid argued that, under Article 13(b) of the Hague Convention, although the children were ordinarily resident in England, they ought not be ordered to return because Mahmud Zafar posed a “grave risk” to their physical and psychological safety, an allegation denied by Zafar.

The judge held that he could not assess the risk of harm on affidavits alone, but moreover, held that it was not his role to conduct such a risk assessment because those would be issues for determination by the Court in England in resolving custody and access and his role was limited to addressing the court’s jurisdiction over the children. The application judge ordered Saiyid to return to England with the children by Dec. 1, 2017, failing which Zafar would have sole custody of the children and be entitled to travel with them back to England.

The crux of the appeal was whether the judge erred by not conducting a risk assessment in respect of the children. The second issue on appeal was whether the judge erred by acting outside of his jurisdiction in ordering Saiyid herself to go back to England with the children.

Pending appeal, Saiyid returned to England with the children. However, Saiyid wanted the appeal dealt with in any event to address the findings made against her by the application judge as they would be prejudicial to the custody and access proceedings in England.

Applications under the Hague Convention are meant to address whether or not the children are properly in the jurisdiction or whether they need to be returned because they were wrongly removed from their place of habitual residence. They are not generally meant to address issues of custody and access. However, an analysis under the Hague (even if it is determined that the children were wrongfully removed from their place of habitual residence) cannot turn a blind eye to the physical and psychological well-being of children. This was confirmed by the Court of Appeal where the court unanimously held that it was an error for the application judge to not make a determination of risk of harm. The court went further, indicating that if affidavit evidence was insufficient to determine the truth, then an oral hearing ought to have been considered by the judge.

This decision comes on the heals of a recent Supreme Court of Canada decision, Office of the Children’s Lawyer v. Balev, 2018 SCC 16, which was also a Hague Convention case. In Balev, the family had resided in Germany for many years. The children were born in Germany. The father gave the mother consent to come to Canada with the children for a school year in order to allow them to study in Canada. Ultimately, their mother chose not to return and Hague Convention proceedings were commenced in Ontario, which ended up before the Supreme Court.

In an earlier article, I endorsed the Court of Appeal’s approach as being both the correct approach in law but also for practical reasons. However, according to the Supreme Court, we were both wrong.
The Supreme Court has now indicated that the “parental intention” approach in assessing the location of a child’s habitual residence is not the approach that Canadian courts should take. Rather, a hybrid approach should be used under Article 3 of the Hague Convention, namely both the circumstances of the children and the intentions of the parents as to the children’s habitual residence. The Supreme Court also indicated that there is no set rule that unilateral actions of one parent may change the children’s habitual residence — this is very new law.

With these two recent cases, there is a clear shift in the law. The lower courts are now clearly directed to look much deeper at the situation as a whole, something that was previously reserved for general custody and access proceeding, including direction to hold oral hearings if affidavit evidence is insufficient to assess matters. I still believe that this approach encroaches on the “best interests” test under the Children’s Law Reform Act, and certainly critics of this approach would argue that this is not the purpose of the Hague, except in very narrow situations of harm from a return order. However, this is now the new approach for Canadian courts and, as a result, we need to change our thinking on Hague Convention cases.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at [email protected].