Case summary: Returning children under the Hague Convention
This case summary was prepared by Pamela Cross.
In this case (Y.S. v J.S., 2024 ONSC 1028), two young children – one and two years old – were removed from Pembroke, Ontario, by their mother and taken to the United States, ostensibly for a week-long visit with her sister. The father consented to this visit, but became concerned when the mother disengaged from any communication with him and did not return with the children on the appointed date. His concern was exacerbated by the mother’s erratic behaviour in the time just before her departure with the children.
Justice Fraser’s decision provides a good summary of the purpose of the Hague Convention, as well as some helpful definitions of important terms.
First, Justice Fraser notes that both Canada and the United States are signatories to the Hague Convention, and that this is incorporated into Ontario family law in section 46 of the Children’s Law Reform Act, reminding us that the purpose of the Convention is to have children promptly returned to their habitual residence when they have been wrongfully removed from it.
The decision states:
“The Hague Convention presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately repatriating them to their original jurisdiction where the merits of the best interests of the child have been determined.
The return order is not a determination of decision-making responsibility or parenting time. It is simply an order designed to restore the status quo which existed before the wrongful retention and to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction.”
Next, Justice Fraser tackles the term “chasing order,” by first explaining that the “requested State” is the place to which a child has been wrongfully removed or retained and the “requesting State” is the place from which a child has been wrongfully removed or retained.
In this case, Ontario was the requesting state and California, where the father believed the children to be, was the requested state.
A chasing order is an order made to support a Hague Convention application. It clarifies for the requested State (here, California) that the opinion of the requesting State (Ontario) is that the removal/retention of the children was wrongful.
Note that in this case, the initial removal of the children was not wrongful: the father consented, based on his understanding that they would come back in a week. The parents were not separated, and he believed they were an intact family unit. The children were, however, wrongly retained, because the mother did not return with them when she said she would and cut off communication with the father.
In the words of Justice Fraser:
“A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child’s return.”
Because the purpose of a chasing order is to facilitate the speedy return of a child, the more quickly such an order can be obtained, the better.
Having laid the groundwork for the order, Justice Fraser then examines how the habitual residence of a child is to be determined, referring to a 2018 Supreme Court of Canada decision and concludes that these children’s habitual residence “is unquestionably Ontario and more specifically, Pembroke, Ontario,” listing several factors leading to this determination:
- The parents and children had been living in Pembroke as an intact family unit at the time the mother took the children to the United States
- Both children were born in Pembroke and had always lived in Ontario
- Their doctor, activities, family pet and paternal extended family were all located in Pembroke
- The father was exercising his rights as one of the children’s custodial parents
- The father had not agreed to the children being relocated without him to the U.S.
Justice Fraser then declares that the children were being wrongfully retained in the United States by the mother pursuant to Article 15 of the Hague Convention and 2. 46 of the CLRA and orders that they be returned “forthwith to their habitual residence of Pembroke, Ontario,” also ordering that the mother pay the father’s costs of the motion in the amount of $15,000.
