Benditkis v. Benditkis [2007] O.J. No. 4815; 162 A.C.W.S. (3d) 45; 46 R.F.L. (6th) 438

INCADAT legal file Hague parental abduction

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Rights of Custody – Art. 3
The father argued that the removal and retention of the child were not wrongful because the parties had joint custody and there was no non-removal clause in the custody order. The court rejected this argument on the grounds that the parties’ custody order prohibited each parent from making major decisions about the child without the other’s consent.
A change in the child’s residence was a major decision that required the consent of the mother. Therefore, the father’s retention of the child in the Czech Republic breached the mother’s custody rights, including the right to determine the child’s place of residence, and the mother’s right to have the child reside with her in alternating two week periods.
Procedural Matters
The father argued that the ex parte declaration that the child was ordinarily resident in Ontario and that he had wrongfully removed the child, should be set aside. The court characterized the ex parte order as a “chasing order,” i.e., “made ex post facto for the purpose of bolstering an application under the Hague Convention.”
The father argued that the Ontario court could not issue a chasing order while the mother was seeking an order for return under the Hague Convention in the Czech Republic. The court rejected this argument and ruled that because the child was habitually resident in Ontario, the court had jurisdiction to make the declarations and to rule on custody of the child.