Espiritu v. Bielza, [2007] O.J. No. 1587; 2007 ONCJ 175; 39 R.F.L. (6th) 218; 2007 CarswellOnt 2546

INCADAT legal file Hague parental abduction

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The parents of the child, a boy, were married in 1998 in the Philippines. After the marriage the father remained in the Philippines, where he was a life-long resident, and the mother moved to Texas, USA. At the time of her move the mother was one month pregnant. The child was born in 1999. The father wanted the mother and child to return to the Philippines, but the mother wanted to stay in Texas and asked the father to join her there. The parents remained separated and never resumed cohabitation.
The father had almost no contact with the child. The mother brought the child to the Philippines to visit the father. The father saw the child briefly during that visit but otherwise did not have contact with his son, despite the mother’s efforts to facilitate contact. The mother obtained a divorce and order for sole custody in Texas, USA. On the mother’s initiative, the custody order included provision for extensive access by the father. The mother committed suicide on 29 June 2006.
A maternal aunt was named legal guardian in the mother’s will dated August 2001. A day prior to her suicide, however, the mother left a note stating she wished a a paternal aunt, who also lived in Texas, USA, to retain “full custody” of the child. The child went to live with the paternal aunt on the day of the mother’s death. On 24 July 2006 the maternal aunt applied for custody of the child.
On 26 July 2006 the paternal aunt also applied for custody. On the same day the maternal and the paternal aunts agreed to a temporary custody order whereby the child would spend alternating weeks with each pending final resolution of the custody proceedings. A lawyer was appointed for the child.
On 8 November 2006 the paternal aunt abandoned her claim for custody. Full custody, including the exclusive right to determine the child’s place of residence, was granted to the maternal aunt, with the consent of the child’s lawyer. The father was not served with this order.
On 8 December 2006 the father applied to have the maternal aunt’s custody order declared void. On 23 December 2006 the maternal aunt returned home to Ontario, Canada with the child, without giving notice to the father or the court. The father having obtained a visa to visit the US on 21 December 2006, arrived in Texas on 31 December 2006. On 4 January 2007 the order granting the aunt sole custody over the child was declared void by a Texas Court. The father petitioned for the return of the child to Texas.