Son's domestic situation with father abroad involved manipulation and abuse, judge says
There was a grave risk that returning a child to his habitual residence in the U.S. would expose him to physical or psychological harm under art. 13(b) of the Hague Convention, the Ontario Superior Court recently said.
On June 17, 2022, the respondent mother drove her child from Newton Falls, Ohio, U.S., to Canada. Since then, she and her son have lived with her parents in LaSalle, Ontario.
The applicant father requested his son’s immediate return to Ohio under the Convention of the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, also known as the Hague Convention. He claimed that the mother did not meet the high threshold for an exception under any of the convention’s provisions.
On the other hand, the mother wanted her son to stay in Canada. She argued that this case fell within the exception under art. 13(b) because there was a grave risk of physical or psychological harm or placing the child in an intolerable situation. The exception under art. 13(2) also applied since the child was of sufficient age and maturity and objected to being returned, she said.
The Office of the Children’s Lawyer, representing the parties’ son in the proceedings, took the same position as the mother.
In Harley v Harley, 2023 ONSC 2563, the Ontario Superior Court of Justice dismissed the father’s application. The child – whose habitual residence was in Newton Falls, Ohio – was wrongfully removed from the U.S. or wrongfully retained in Canada, the court said. The court added that the father, who had custody rights over his son, did not consent and would not have agreed to his permanent move to Canada with his mother.
The court found that the mother never told the father about her premeditated plans to move their son to Canada. Before she left, she asked for legal advice from an attorney in Ohio and obtained documents to allow them to enter Canada.
However, the court ruled that the mother showed, on a balance of probabilities, the requirements of articles 13(b) and 13(2) on a standalone basis.
The court explained that the art. 13(b) exception applied because the case met the high threshold for establishing that returning the child to Ohio would subject him to a grave risk of exposure to physical or psychological harm or would otherwise place him in an intolerable position.
The court said that the father created a domestic situation involving video and audio surveillance, manipulation, and abusive control of the mother and the son. The court added that the father showed controlling behaviours and required his son to perform many household tasks that sometimes demeaned and psychologically damaged him.
On the issue of whether safeguards existed in Ohio, the court determined that ordering the son to return to a household where the father allegedly could not afford to make a claim or an application amounted to subjecting the child to an intolerable situation without recourse.
The art. 13(2) exception was also applicable because the child was 12 years old and mature enough that the court should consider his objection to returning to Ohio. The court described the son as a bright and intelligent person who could accurately and effectively explain the situation to a clinical panel member of the Office of the Children’s Lawyer. The court noted that the child was a Canadian citizen.
