The Hague Convention can play a crucial role in whether children are returned after a parental abduction following a custody dispute, say lawyers.
The convention – the international treaty on child abduction – is meant to make the child’s return to their home country easier, but lawyers say there can be snags and not all countries are signatories to the agreement.
An Ontario court heard both Maha Alkhudair and Abdulhakeem Alobaid left their home country of Saudi Arabia to study in Canada. He became a surgeon working in Ottawa and Hearst, Ont. and she was a was a PhD student in education at the University of Ottawa. They became Canadian residents in 2010, the same year they had a child, and the father eventually became a Canadian citizen. Their marriage was arranged and resulted in a separation in 2013 after nearly five years.
In 2016, the mother started divorce proceedings in Canada but the following August, after she was unsuccessful in some of her motions, she took their son to Saudi Arabia, never to return, allowing the father, who was still in Ottawa, only minimal contact. This past February the Ontario Superior Court of Justice allowed the father’s request for an order to dismiss her application. He also sought orders to have the child returned, the mother arrested and be held in contempt. The mother did not participate in the Canadian proceedings.
“The mother took matters into her own hands and left with the child within days of the court denying her request for leave to bring an urgent motion for permission to travel. By her actions, she signals disregard for the authority of the court, the rights of the child and the rights of the father. The issues of where and with whom the child will live go to the very heart of this case. Since leaving, the mother has ignored two orders of this court requiring her to return the child to Ottawa – either by travelling with him or by arranging for him to travel with others. This conduct does not and cannot beget the benefit of the court’s discretion,” wrote Justice Darlene L. Summers in the decision, awarding the father sole custody and finding the mother in contempt.
Meanwhile the mother started custody proceedings in Saudi Arabia and the father has defended those proceedings, but maintained that Ontario is the proper jurisdiction to decide custody of the child who remained in Saudi Arabia.
“If you go to a Hague country in violation of a court order, you’ll be sent back with the child,” says Nicholas Bala, a professor at Queen’s University faculty of law.
“But if it involves a non-Hague country, it can be very, very difficult for a parent to ever get their child back,” says Bala, whose research includes a focus on parental alienation and relocation referring to the Hague Abduction Convention. “Other countries, particularly the countries in the Middle East, Saudi Arabia being a prime example, but also Iraq, Iran, Lebanon, Egypt, when children are taken it’s either very hard or impossible to return them.”
The Hague Convention allows for a timely return of the child and a quick settlement of a “significant portion” of applications, providing the countries involved are signatories, says Bala. The intent is for a quick return to the habitual country of residence where issues such as custody can be addressed, he adds.
“Once removal has occurred, there’s practically nothing that can be done, particularly . . . with countries that are not diplomatically sympathetic to Canada,” says Bala. “We live in a society where there’s a great deal of immigration and movement between countries and we have many duo citizens so it’s an issue but if it’s a non-Hague country that’s involved, the risks are dramatically escalated.”
Some countries that don’t participate in the agreement, such as India, do still recognize some Canadian orders involving children, says Bala. He adds that leaves several countries that don’t recognize Canadian law, which could prove problematic.
Toronto-based family lawyer Michael Stangarone, whose practice at MacDonald & Partners LLP in Toronto largely focuses on international abduction cases, has used alternative approaches to return children who are wrongfully removed from the habitual place of residence.
He has referred to Ontario’s Children’s Law Reform Act for international cases, including those involving countries that are signatories to the Hague Convention. One involves a mother who fled from Hong Kong to the Toronto area, he says. Stangarone is representing the father, who remains in Hong Kong.
While Hong Kong is a signatory to the convention, Stangarone says he encountered issues when he discovered that common law relationships are not recognized in Hong Kong. So even though the separated parents shared parenting time with their daughter, because they were not married, the father had no custody rights there, he says.
As a result, he says there was some question about whether the argument of wrongful removal under the Hague Convention would be successful.
He decided not to invoke the Hague Convention. Instead, he opted to use the Ontario Children’s Law Reform Act, which he says provides helpful provisions in the father’s attempt to have the child return to the girl’s home country of Hong Kong.
“You have to show the focal point of the child’s life was in the other jurisdiction,” he says. “Common sense dictates that someone who absconds in the middle of the night without consent or without knowledge of the other parent, that type of conduct should not be condoned, there should be sanctions for that.”
Farrah Hudani, an associate at Wilson Christen LLP in Toronto, is currently working to reunite her Canadian client, Elena Danilina, with her daughters, who Hudani says were taken abroad by Danilina’s husband.
Hudani says officials in Morocco, which is a recent signatory to the Hague Convention, refused to enforce orders to return the children to Canada
The high-profile case illustrates cracks in the international system that begs attention, says Hudani, whose family law practice in Toronto focuses on jurisdictional issues.
The children were initially taken to the United Arab Emirates, which is not a signatory, so Hudani waited until they went to Morocco, expecting the international treaty would result in the children’s return to Canada.
Hudani’s first step was to file a case with Ontario’s Central Authority for the Hague Convention and get a travel ban, which prevented the father and daughters from leaving Morocco. And then a Moroccan court issued the return order.
“The courts did what they were supposed to do, they ordered the return of the children,” she says. “It’s a Hague signatory so it seems ridiculous to me that they’re not enforcing because they’re signatories and they’re not complying with their treaty obligations.”
But when it came time for the girls to come home Hudani says they refused to part from their father at the airport and Moroccan authorities wouldn’t enforce the order. The mother, as a result, has been spending the past year in Morocco waiting for officials to act.
The hope now is that Canadian officials will put pressure on officials there, says Hudani.
“I think we need to put more pressure on signatory countries to follow the convention for sure,” she says.
“There needs to be more authority, more control over these issues because it’s happening all the time.”