Mother fled to Canada with child; child developed ties to Canada during delay in proceedings
The Ontario Court of Appeal has found that a delay in resolving an application for the prompt return of a child wrongfully removed from his father in Peru was contrary to the international requirement to act quickly in such matters. However, that delay made it too late to return the child to Peru, according to the court.
In Leigh v. Rubio, 2022 ONCA 582, the father of a nine-year old boy who had lived his entire life in Peru alleged that the mother took the child out of Peru and brought him to Canada, in violation of a Peruvian court order. The parties were married in 2012 and they separated shortly after their son was born in 2013. Following their separation, litigation ensued with allegations of abuse on both sides. In 2018, a Peruvian family court made an award of temporary joint custody.
In 2019, the mother fled to Canada with the child, claimed asylum, and moved to London, ON. The father applied to the Ontario courts for the child’s return pursuant to the Hague Convention on the Civil Aspects of Child Abduction. The convention was incorporated into Ontario law through the Children’s Law Reform Act. The Ontario Court of Appeal acknowledged that courts have a duty to resolve applications quickly and efficiently for the return of a child under the Hague Convention because delay imposes hardship on the child, frustrates appellate review, and breaches Canada’s international obligations.
More than one-and-a-half years after the abduction, an Ontario judge confirmed that the child’s habitual residence was Peru and that he had been wrongfully removed because the father had custody rights at the time of removal. However, the judge dismissed the father’s application to return the child based on the finding that “there was a grave risk that the child’s return to Peru would expose him to physical or psychological harm or otherwise place him in an intolerable situation.” The judge found that the father had engaged in a pattern of domestic violence against the mother that had escalated to death threats. The father appealed the judge’s decision not to return the child to Peru.
Limited remedies due to delay
The case was brought to the Court of Appeal two-and-a-half years after the abduction.
Under the Hague Convention, Canada is required to act expeditiously in proceedings for the return of the child and a prompt return protects the child against the harmful effects of wrongful removal or retention, as well as deterring parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody.
However, the appeal court found that the hearing in the trial court extended for a period of five months, and the release of the decision was well over a year from the date the father filed his application. According to the court, when there is a delay, the abducting parent gains an advantage because the child could develop ties to the new jurisdiction and appellate review would be impeded. The court found that the child had been in Canada for nearly three years and that he was already estranged from his father.
The appeal court said it did not have the ability to remedy the delay. A new hearing would only further the delay, and in light of the current situation, a return order would not appear to be in the child’s best interests.
“It is simply too late to return the child, who is now estranged from the father,” said the court.
Gaps in application judge’s analysis
The appeal court addressed the parenting issue that was before the Ontario judge and found two gaps in the judge’s analysis. First, the Ontario judge failed to rationalize her conclusions with those of the Peruvian court. The court found that the Peruvian court made conclusions regarding joint custody and the importance of the father’s relationship with the child that were not addressed by the Ontario judge. The appeal court further noted that the Peruvian court had the benefit of contemporaneous social work reports and psychological assessments that should have been addressed by the Ontario judge. Second, the appeal court found error in the Ontario judge’s description of the mother’s evidence which she seemingly adopted as fact.
The appeal court noted that the case appeared mired in procedural problems, with several different judges involved. More than two years had passed since the abduction, and it was simply too late to return the child, the court found. According to the court, the only available remedy at this point was to direct the court to a quick resolution of a parenting plan with a fresh approach to evidence.