Court Cases & Orders Jurisdiction

“It is Simply Too Late”:  Court Decries Procedural Delays in Return of Abducted Child 

boy abducted from peru
Written by Russell Alexander / (905) 655-6335

“It is Simply Too Late”:  Court Decries Procedural Delays in Return of Abducted Child 

In Court Declines to Approve of Child Abduction to France, the court ordered a mother to immediately return a child to Ottawa, after she abducted him to France by surreptitiously moving there without the father’s knowledge. 

In another decision released recently, the Ontario Court of Appeal ordered the opposite – that a child who had been wrongfully removed from Peru to Canada by the mother may be able to stay there.  In that case, the Appeal Court’s decision was prompted by the undue systemic delay – which saw the matter take literally years to wend its way through the courts. 

The case involved a 9-year old boy, who had lived his entire life in Peru after their parents separated shortly after his birth.  In 2019, the mother abducted the child from Peru and brought him to Canada.  This was violation of a Peruvian court order which had granted both parents temporary joint custody.

The father promptly applied to the Ontario court to have the boy returned.  He relied on the Hague Convention on the Civil Aspects of Child Abduction, which would mandate the child’s return.  (This is a Hague convention that has been incorporated into Ontario law through provincial legislation).  The Convention’s chief goal is to secure the prompt return of children wrongfully removed from or retained in any contracting state.  

Emphasis on “prompt return”.

About 1.5 years after the mother abducted the child back to Canada, the father finally obtained mixed results from an Ontario application judge: The judge declared the child’s habitual residence was Peru, and that the child had been wrongfully removed by the mother, especially in light of the father’s custody rights.

Nonetheless, the application judge refused to order the child returned to Peru.  Partly, it was because there were domestic violence allegations against the father, with the judge concluding 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 father appealed further – as was his right – but was unsuccessful. This time, it had to do with the courts’ own delay in the matter, since the subsequent appeal hearing took place 2.5 years after the mother’s abduction to Canada. 

The Appeal Court began by pointing out that under the Hague Convention, the Ontario courts had an obligation to act promptly on proceedings calling for the child’s return:  

Courts have a duty to resolve applications quickly and efficiently for the return of a child under the Hague Convention. Delay imposes hardship on the child, frustrates appellate review, and breaches our international obligations. To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called “parenting orders” under Canadian and Ontario law) are for another day.

Not only is prompt resolution a procedural requirement, but it also prevents strategic advantage and manoeuvring by the abducting parent: 

Prompt return protects against the harmful effects of wrongful removal or retention, deters 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, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues.

However, the delays in the case of this 9-year-old boy were both inordinate, and unjustified.  Citing the application judge, the Appeal Court noted the troubling delays were apparently caused by “COVID health concerns, technical issues (including issues with Zoom both in and out of the courtroom) and issues with the availability of witnesses and interpreters”.  Yet in the Appeal Court’s view, none of these justified the extent of the delay here. 

With all that said, the Court of Appeal nonetheless concluded it was unable to remedy the delay, however long and improper.  A new hearing was not the solution, since this would only delay proceedings even further. Most importantly, since two full years had passed since the move to Canada,  returning the child to Peru now would not be in his best interests, especially since he was estranged from his father. 

“It is simply too late”, the Appeal Court said. 

After dismissing the father’s appeal, the Court stated the only available remedy was to direct the lower court to quickly put together a parenting plan for the child, after looking at the evidence afresh.

Leigh v. Rubio, 2022 ONCA 582 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.