A spouse abducts your children, what to do? Matrimonial disputes can get nasty.
While abducting your children may seem like the only option at the time, a recent Ontario Superior Court of Justice decision shows what can happen.
M., 5, and J., 7, were abruptly removed from their home in East Asia when their Canadian mother fled to Ottawa.
Moving the boys across international borders made the removal an abduction. Which is how their mother, who we will call “Sarah”, came to violate The Hague Convention.
When Your Home Is Disrupted
How did their family dispute get to this point? As most marriages do, the couple’s new life got off to a great start.
Sarah and husband “Bill”, a Scandinavian, were married in Montreal in 2008 and travelled to the European continent, Scandinavia and the Commonwealth for Bill’s post-doctoral studies.
A stay-at-home mom, Sarah gave up her studies when she became pregnant with J. in late 2011. M. followed in 2014.
With two active boys to care for, she looked after the home while Bill studied and worked. A tenure track appointment took Bill to East Asia in 2016. Sarah and the children, who have dual citizenship, followed as dependents on his visa.
Maybe it was the “seven-year itch” or maybe they just grew apart. Either way, relationship and financial issues disrupted the family’s Asian home. A summer vacation with the boys in Quebec gave the couple time apart. But the problems continued when Sarah and the boys returned to Asia that fall.
Why Abduction Is An International Incident
Sarah and Bill’s marital discord grew worse in mid-September 2018 when Sarah left their home after an argument. Bill likely expected Sarah to return. Instead, she took M. and J. to stay with her sister, who had travelled to Asia from Canada for the very purpose of aiding Sarah to deal with her marital problems.
So it was that Sarah visited a local lawyer, arranged by her sister, that very day. Airline tickets and visas were hurriedly obtained and Sarah, the children and her sister were off to Canada within 24 hours. Bill found out the following day while searching for his family.
With Sarah now in Ottawa, the couple and their extended families tried to fix the dispute. Mediation and negotiation were attempted. But although Bill had contact with M. and J., the couple was unable to agree on living together.
Under article 12 of The Hague Convention, Sarah had abducted her own children. The international convention protects minors under 16 from the harmful effects of being wrongfully removed or retained. It allows for children and youth to be promptly returned home and protects parents’ right to “secure” access.
How Courts Deal With Parental Abduction
By January 2019, the dispute was in court. The couple agreed that the children’s usual home, their “habitual residence” as the courts call it, was in Asia.
Sarah admitted she was wrong to take the children to Canada and refuse to return them to Bill. As their parents, both Sarah and Bill enjoyed custody of M. and J. before Sarah’s actions. Keeping the children in Canada against Bill’s wishes violated his custody rights.
Judges consider the best interests of the child in making custody decisions. In Hague Convention applications, the court where the child habitually resides has this responsibility.
In Bill’s case, that should have been the court where he lived in Asia. But Sarah relied on article 13(b) of The Hague Convention.
That article states a court can refuse to order a child to be returned if there is “a grave risk” the child will be exposed to physical or psychological harm. Or be placed in an “intolerable” situation.
A Spouse Abducts Your Children
Sarah argued the couple’s financial and relationship problems put M. and J. at risk. She cited what she called Bill’s angry outbursts, jealousy, silent treatment, impatience and intolerance.
She alleged he made the children anxious and cited a psychological report by a therapist she consulted in Ottawa.
Bill denied the allegations. He countered that he provided as well financially as he could for the family and spent time with M. and J. when he could.
Sarah had aggravated the incident the day she left to “comply” with her family’s plan to return to Canada, his lawyer said.
What Is “Grave Or Intolerable?”
Suggesting children are at grave risk is a serious matter. The Ontario Superior Court of Justice looks at whether the alleged risk is “grave”, “weighty” or “severe.” Intolerable means the children’s situation must be potentially “grave”, “extreme” or “unbearable.”
In another recent case (Hassan v Garib), the Ontario court posed three questions:
- Has the alleged past violence been severe and is it likely to recur?
- Has it been life-threatening?
- Does the record show that (the parent) is not amenable to control by the justice system?
Spouse abducts your children
Sarah’s complaint didn’t meet the high threshold article 13(b) sets out. While the court denied her request to keep M. and J. in Canada, her Asian lawyer had reassured her she could pursue the case in an Asian court, the same as in Canada. That gave Sarah family law rights if she and the children returned to Asia.
Given that The Hague Convention would protect her rights in Asia, the court reasoned it would be wrong to delay returning the children to their habitual residence.
Sarah was ordered to go back to Asia with M. and J. If she chose not to, the court gave Bill the right to return the children home.
For Bill’s part, he was ordered to pay for the children’s and Sarah’s airfare, move out of their home so they could live on their own and pay living expenses until a family court in Asia could make a spousal and child support order.
As could be expected, the court ordered the couple to arrange therapy for M. and J. And to work out their marital problems through mediation or the courts. When your spouse abducts your children, speak to a law firm.
Author: Linda Mueller