Vacations Gone Wrong – Kid’s Visit to Out-of-Country Parent Sparks Custody and Immigration Nightmare
In a case that was heard by the Ontario Court of Appeal recently, a simple visit by a 12-year old girl to come see her father in Canada came to a dramatic head, and sparked a custody dispute that had repercussions relating to allegations of abuse, determination of immigration status, and protection of the girl’s constitutional rights. The case may serve as a cautionary tale of what can go wrong for separated or divorced parents who plan to take their children in or out of the country on holidays this summer.
The parents of the girl had separated. The mother lived in Cancun, Mexico and had legal custody, while the father lived in Toronto and had access rights. In December of 2008, the girl travelled from Mexico to Toronto for what was intended to ben an uneventful visit with her father. She was accompanied by her maternal grandmother and an uncle, and had the full consent of her mother to make the visit.
During the visit it was revealed – first by the maternal grandmother and then by the girl herself – that the girl had been abused by her mother. As a result, the girl stayed in Toronto with her father and with her aunts, rather than return to Mexico as had been planned.
Relying on the allegations concerning the abuse by the mother, the girl applied successfully for refugee status in May 2010. However, the father’s refugee status application was denied, and he moved to Norway.
By this time, the girl had been contentedly living in Toronto with her aunts for about 18 months, and the aunts had applied for custody of her. Still, the mother in Mexico applied for an application under the Hague Convention for an order compelling the girl to return to Mexico. Neither the father nor the aunts received timely notice, and the hearing went ahead without them. The judge ordered that the girl, who was now almost 14 years old, was being wrongfully detained and ordered her returned to Mexico immediately. She was removed from her Toronto school with the assistance of police, placed in her mother’s care, and – without the knowledge of the father or the aunts, and despite her own protests – was flown to Mexico. She was prohibited from communicating with anyone in any manner, and was denied the opportunity to return to Toronto to retrieve her refugee documents which would establish her as a Convention refugee in Canada.
The father appealed the decision of the judge hearing the mother’s Hague application to return the girl. Among other things, he argued that the Ontario law which incorporates the Hague Convention into Canadian law (namely, s. 46 of the Children’s Law Reform Act (CLRA)) was in conflict with Canada’s obligations to Convention refuges such as the girl.
The Ontario Court of Appeal agreed, to the extent that it ordered a new Hague Convention hearing. Although s. 46 of the CLRA was constitutionally valid, in this case there had been a breach of the girl’s Charter s. 7 rights (which protect her right to life, liberty and security of the person and her right not to be deprived thereof except in accordance with the principles of fundamental justice). Her right to procedural fairness had also been compromised. As a result, the Ontario Court of Appeal ordered a new Hague Convention hearing be held, but one which allowed the girl full representation by the Office of the Children’s Lawyer (or by her own lawyer if she chose), and which allowed to her to present evidence and receive copies of all evidence that had already been filed with the Hague Convention judge. The girl, her father and the aunts were also to be given full notice of this new hearing. Finally, since the girl had already returned to Toronto to participate in the hearing before the Court of Appeal, it was unnecessary for that court to make any order for her to be returned from Mexico.
Although this is a rather dramatic and likely unique scenario, travel to or from Canada for children of separated or divorced parents can be fraught with legal pitfalls. At Russell Alexander, Family Lawyers we can provide fact-specific advice to parents who are planning summer holidays out of the country with their children. For more information, visit us at www.RussellAlexander.com
For the full text of the decision, see:
A.M.R.I. v. K.E.R., 2011 ONCA 417