In October we reported on an important development: As of October 3, 2022, the Ontario Family Law Rules (which are regulations made under the provincial Family Law Act) have been strengthened to expedite the process for international child abduction matters and hearings. By extension these new rules apply to matters that are covered by the Convention on the Civil Aspects of Child Abduction (the “Hague Convention”).
Continuing on the theme of child abductions by parents, a recent case called Fearon v. Lagueux is noteworthy. It considered a narrow but important distinction in the law governing remedies for international child abduction, versus the abduction of a child from one Canadian province or territory, to the other – in this case from Quebec to Ontario.
The facts involved a child who was now 11 years old. The parents were both habitually resident in Quebec, even after they separated. But on October 15, 2022, and without notice to the father, the mother travelled to Ontario with the child. Her aim was to move there permanently and go live with her parents in Burlington – essentially an inter-province child abduction. The court explained the mother’s motive for the surreptitious relocation:
She states that she was escaping a situation of family violence whereby [the father] exercised coercive control over [the mother] and the child as a result of an extreme and irrational concern about the risks associated with the COVID-19 virus. [The mother] has filed affidavit evidence stating she and the child were essentially held hostage for more than two years, never going outside of the house and having no personal contact with anyone other than online. The child was home schooled and interacted only with virtual friends. Since the start of the pandemic, the child has not seen any health care professional for medical, dental, or therapeutic purposes.
The father applied to the Quebec court to have the child returned, explaining that the strict approach to COVID-19 protocols had been a mutual decision between him and the mother.
In response to that Quebec application, the mother claimed that the Ontario court was better poised to resolve the parenting dispute, and should now take over. She pointed to the authority granted under the provincial Children’s Law Reform Act (the “CLRA”), which allows an Ontario court to make or vary a parenting order provided that: 1) the child is physically present in Ontario; and 2) the court satisfied that the child would suffer “serious harm” if removed from the province.
She also tried to draw comparisons to the test used under the Hague Convention, which allows an Ontario court to assume jurisdiction where returning the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.
In this case, she claimed that if the child was returned to Quebec, the child would face serious physical, emotional, and psychological harm due to the father’s drastic COVID-19 stance. She argued these were exceptional circumstances that justified the Ontario court taking over – even though the father refused to submit to that court’s jurisdiction over their dispute.
The Ontario court examined the correct test. It noted there were apparently no prior cases involving domestic, inter-provincial child abductions where the CLRA had been used to justify a court taking over a matter like this one. Instead, as the court noted, the CLRA “has historically been relied upon in situations where children have been abducted from countries that are not signatories to the Hague Convention.” The court explained the built-in protective legal premise that justifies an Ontario court’s assumption of jurisdiction in such non-Convention cases specifically:
I am not satisfied that … the CLRA is available on domestic inter-provincial child abduction cases. The intention of this provision … is to ensure the best interests of the child is the basis upon which parenting decisions are made. This is assured for countries that are signatories to the Hague Convention; there is no such assurance to the Ontario Courts that foreign non-signatory countries will adjudicate parenting decisions with the best interests of the child as the paramount consideration. [The CLRA] provides this Court with the legislative authority to take jurisdiction, where appropriate, to ensure the best interests of the child is the foundation for parenting decisions in circumstances where the Hague Convention is not invoked.
With this in mind, the court confirmed that in this intra-province abduction scenario the CLRA, with its low “serious harm” threshold, simply did not apply. Nor was this a scenario to which the Hague Convention test applied.
Importantly, the court added that the Quebec courts could be trusted to make a fair decision on whether the child should be returned. The prime factor involved the “best interests of the child”, which is a core principle in all of Canadian Family law. The court said:
I have every confidence the Quebec Superior Court will adhere to its statutory obligation to give due and proper consideration to the best interests of the child when making a parenting order. There is no basis on which to find that … the CLRA should be relied upon by this Court to take jurisdiction from the Quebec Superior Court to ensure the best interests of the child are considered.
In the end, the Ontario court declined to take over jurisdiction from the Quebec court over the parents’ matter – at least for the time being. It noted the mother had actually applied to the Quebec court the day before, asking for it to defer to its Ontario counterpart. The decision was still pending, but if the Quebec court granted the mother’s request, then the Ontario court would readily step in at that point.
Full text of the decision: Fearon v. Lagueux, 2022 ONSC 6415 (CanLII)
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