Rights of Custody – Art. 3
The father was exercising rights of custody at the time of the wrongful retention. Up until that time, the family had lived together in the same house in California. The fact that mother and child had gone to Ontario, ostensibly for a holiday, in no way altered the father’s rights of custody.
Grave Risk – Art. 13(1)(b)
There was no independent evidence to support the mother’s claims that the father had mistreated her and the child and that he would take the child to Iran. The evidence of third parties on which she relied did not touch the substance of her allegations and so did not corroborate her claims. The allegations had not yet been tested by cross examination and no viva voce evidence had been heard.
The evidence of two doctors was unreliable as it was based solely on facts originating with the mother which they were unable to verify. In addition, their report may have been influenced by a letter from the mother. The judge was persuaded by the father’s argument that the mother’s allegations of mistreatment had expanded significantly throughout the proceedings, further weakening her case. No details of the allegations were given in the judgment.
In any event, the return of the mother and child to California would not pose any risk as they would no longer be living in the same house as the father. The father would not have custody or access until and unless it was granted by the California court.
The father was to undertake not to move to Iran and not to seek custody or access without the permission of the California court. Furthermore, so as to avoid any immigration problems on the mother’s return, the husband was ordered not to continue with his divorce claim in California and to consent to the proceedings being stayed.
Issues Relating to Return
The mother’s argument that she would be disadvantaged in custody proceedings in California as there was no system of legal aid, was not made out on the evidence. Even if the allegation were true, it was outweighed by the fact that all the family’s connections were with California where the issue of custody could be most appropriately determined. The absence of legal aid would be insufficient to defeat the policy of the Convention to combat and prevent the abduction of children to another forum in order to gain an advantage.
Furthermore, the judge commented that the effect of the mother’s argument would be that the object of the Hague Convention of returning a child promptly to the state of habitual residence would only be achieved when the abducting party had sufficient resources to finance custody proceedings in that state. To refuse to order a return on the basis that the abducting party could not afford to litigate in the state of habitual residence would be a very inequitable result.
The mother’s argument that she might have some immigration problems in California and be unable to stay there as a result of the breakdown of her marriage, was not made out by the evidence presented to the Ontario court. The judge had little sympathy, indicating that if such immigration problems materialised, they were largely of her own making as a result of taking the child to Canada. Nonetheless, he ordered undertakings so as to avoid the possibility of immigration problems.
Jurisdiction Issues – Art. 16
The Court said that “[t]he real issue is not who should have custody of the child…but where should the issue of custody be dealt with”. The Ontario court did not have jurisdiction to determine issues of custody and access. These were to be resolved by the courts of the state of habitual residence.
The mother and child had lived in California and this was the location of evidence and witnesses. It was therefore appropriate for the mother’s allegations against the father and the matter of custody and access to be determined in California.