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Old 01-04-2006, 02:34 AM
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Default Hague Convention and Custody

Custody and the Hague Convention

Recent Case Law - Ontario Superior Court of Justice - November 10, 2005

Hague cases are not common and often make interesting reading.

Riedel v. Thomopoulos-Danilov, a decision of Justice Seppi, is no exception.

In this case, there was no question that the child was wrongfully retained in Ontario contrary to a California order. However, the mother raised Article 13 of the Convention which gives the court power to refuse to return a child if the child objects to being returned and has attained an age and degree of maturity where it is appropriate to take account of the child's views. In this case, the child was 11 and made it abundantly clear that he did not wish to return to California with his father. The case is of some importance because Justice Seppi embarked upon a careful analysis of Article 13 and delved deeply into the word "objects" and into the task of determining the child's "best interests" as opposed to the child's "wishes."

Justice Seppi found that, although the child clearly "objected" to being returned to California, his objection was not genuine in the sense that, in her view, the child's objection was the result of his mother's powerful influence upon him, which she had exploited to keep the child in Ontario. Since the evidence overwhelmingly supported the finding that the child was extremely vulnerable to his mother's influence, the court held that the child's objection could not be the basis upon which the court could make a decision. However, for what it is worth, the motions court judge also concluded that, at the age of 11, the child had not attained an age and maturity at which it was appropriate to take his wishes into account. The judge was mindful that California courts had delved deeply into the matter and that the child's wishes might well be taken into account in the custody dispute which was ongoing in California. In the meantime, however, the child was required to return forthwith to California with his father.

This is not a surprising decision. More and more frequently, judges are applying both the spirit and the intention of the Hague Convention in returning children to their habitual residence. That is particularly so where courts are well known to Canadian courts and where the Canadian courts have confidence that the rule of law, coupled with the child's best interests, will prevail. California is a particularly sophisticated jurisdiction for the resolution of custody disputes and Canadian courts should have every confidence that California courts would deal with the custody issue just as fairly and appropriately as would a Canadian court. It is important that the Hague Convention be respected and it is critical that children be returned to their habitual residence even in the face of what appears to be an objection. This case shows that counsel were careful enough to critically examine the objection and make it clear to the trial judge that the objection, on its face, was not sufficient to prevent the child from being returned. The case is a good exploration of the evidence necessary to satisfy a judge that the objection of the child should be disregarded.