Friday, January 25, 2008

Ontario Court of Appeal in Hague Convention Motion: Return Child to Florida

Last week the Ontario Court of Appeal ruled that a father taking 8 months to file an application under the Hague Convention for the return of his child to the United States does not constitute his consent to permitting the child to remain outside the Country with his mother.

Diana Ibrahim, a native Ontario resident, and her husband, Imad Girgis, a native Jordanian resident, were residing in Florida under Girgis’ work permit since 2001. The couple married in Florida in July 2004 and had their son Andrew in Florida one year later.

After corresponding with US immigration to obtain permission to both leave and re-enter the United States, Ibrahim took Andrew to Ontario to visit a terminally ill relative on June 11, 2006. They both had return tickets for late September, which Girgis had purchased. As a result of not hearing back from US immigration about her ability to re-enter the United States, and as a result of some conflict which occurred between the couple, Ibrahim chose to remain in Ontario with Andrew.

In January 2007, Ibrahim commenced court proceedings in Ontario to obtain custody of Andrew. In late March, Girgis began court proceedings in Florida respecting both custody of Andrew and a divorce.

As a result of the similar proceedings, Judges from each jurisdiction held a conference call with the parties and concluded that a jurisdictional motion was to be heard in Ontario. A day before the jurisdictional motion was to be heard, Girgis commenced an application under Article 12 of the Hague Convention for the summary return of Andrew to Florida.

Based on Article 13 of the Hague Convention, which reads as follows:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention
the Trial Judge hearing the Hague motion concluded that the father’s 8 months delay in filing the application under the Convention constituted an “acquiescence” of the father to the removal or retention of his son and accordingly held that Andrew does not need to be returned to Florida.

However, the Court of Appeal found that trial judge erred in interpreting the meaning of “acquiesced” based on the following analysis:

1. The Convention allows a parent 1 year to bring an application, the period is purposely provided for reasons which may include the parties attempt to reconcile, or one parties unawareness of the Convention;

2. The onus to prove acquiescence to the retention or removal of the child is on the party claiming it, which in this case would be Ibrahim, and a delay in application is not enough to satisfy this onus;

3. Even if the father had acquiesced, the Court is not “Bound” to return the child, meaning the decision is at the discretion of the Court, regardless if one of the items listed in Article13 is established; and

4. The Supreme Court of Canada has previously held in Thomson v. Thomson that Article 12 of the Convention "establishes a presumption in favour of the child's summary return"

Accordingly, the Court of Appeal held that Andrew was to be immediately returned to Florida. As a result of Andrew’s young age, and the fact that he had not seen his father in 19 months, the Court also added that it would be “appropriate” for Ibrahim to travel back to Florida with Andrew and make temporary living arrangements there. Girgis agreed to pay both for the flight and the temporary accommodations.

A full text version of Ibrahim v. Girgis can be found here.

- Annie Noa Kenet, Toronto

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