After-the-Fact, Court Declines to Approve Mom’s Self-Help Abduction of Child to France
Many separated and divorced parents are frustrated with the Canadian judicial system. But the acrimony surely hits low mark when one of them decides to take matters into their own hands, by abducting the child and taking them to another jurisdiction.
Back in April of this year, we did an article called “Missing Children and Child Abduction” that covered a case called Bhadauria v. Côté. It involved a mother who had abducted her own 16-month-old child and moved to France, without telling the father. She told the court she did this out of fear for herself and the child, and she accused the father of committing family violence and being abusive throughout the relationship. He had also threatened and intimidated her since it ended, she said. That earlier ruling involved a procedural issue around a motion’s urgency.
Now, in a follow-up ruling involving the same parties, the court offers some insight on an important point: Parents who strategically abduct their own children as a self-help measure are unlikely to get the courts’ retroactive endorsement or approval.
In Bhadauria v. Côté the mother had come back to court asking for an order confirming that the child could stay with her in France. The court described the mother’s position this way:
The mother submits that it is in the child’s best interests to live with the mother in France because she has been the primary caregiver of the child since birth, that she has a stable parenting regime with the child, and that the father does not have a strong relationship with the child.
The mother states that in France, she has an income comparable her income in Canada, a full-time position, medical insurance, a vehicle provided by her employer, 12 weeks of holidays, a work schedule that permits her to retrieve the child from school every night and to be with her on Wednesdays when she does not have school. In contrast, she says that if she is required to return to Ottawa, she will be isolated from her family, subject to psychological abuse amounting to family violence, unable to work as her professional license is no longer valid in Québec, has no place to live, has no vehicle, has no financial support and the father is requesting the same parenting time that he refused to exercise prior to separation.
In opposition to this, the father wanted to have the child returned to Ottawa, even though he had not seen the child since December of 2021. He vehemently denied the mother’s allegation that he was abusive or committed family violence, and claimed instead that the mother had created a false narrative to legitimize her abduction of the child. He accused her of planning the abduction all along.
Since the parents were unmarried, the governing legislation was the Ontario Children’s Law Reform Act, which obliged the mother to notify the father in writing of her intent to move to France – which she did not do. The court could waive this requirement in some circumstances, including those involving a risk of family violence. The court described the test this way:
The mother did not have the right to remove the child from Ottawa and move to France because she did not have the consent of the father, or a court order permitting such a move. However, if the mother can prove, on the balance of probabilities, that it was appropriate for her to move based on certain factors including the existence of family violence against the mother and or child, the court may permit such a move.
The court found the mother was unable to meet the burden of proof. On the allegations of family violence, she had provided volumes of documents, and affidavits from four of her friends – none of whom like the father. About this type of evidence, the court said:
The court must be cautious in making findings of family violence where the evidence is based on untested affidavits with no opportunity for viva voce evidence. The court should seek documentary evidence such as emails or text messages or some other type of corroborative evidence to allow the court to make at least an initial finding regarding these very serious allegations.
While the mother conceded that she should have given the father notice of her decision to relocate, this did not change the fact that she moved without telling him, instead of starting court proceedings including an application for a restraining order if necessary. As the court put it, “The mother had options”. But instead of taking that route, the mother “availed herself of a self-help remedy by moving to France with the child, and then asking for permission of this court to authorize her actions after the fact.”
The court ended with this directive:
I do not find it was appropriate for the mother to fail to give the father any notice of her decision to take their child to France then moving the child to France. The mother appears to have determined that she will be the custodial parent of the child and that the father will have parenting time. That is not the mother’s decision. Either the parties will reach a consent or the Superior Court of Justice will make that decision.
Consequently, the child must return to Ottawa, Ontario. I am granting the mother a delay in returning the child, however, if she fails to return the child as ordered, I have directed the police to enforce this order.
For the full text of the decisions, see:
Bhadauria v. Côté, 2022 ONSC 2476 (CanLII)
Bhadauria v. Cote, 2022 ONSC 3088 (CanLII)
