The mother took the children to Canada in 2013 and has remained there, despite the expiry of the consent form. (Photo: Wikimedia/User AwOc)
In cases of custody disputes that move not just across provincial but national borders, determining custody issues can become quite complex as this Ontario Court of Appeal case demonstrates.
Two Canadians married in 2000 and moved to Germany the following year and got permanent resident status in Germany. After their move, they had two children, one born in 2002 and the other in 2005. The couple separated in 2011 and the father received custody but they kept living in the same house.
Two years later, the parents decided that the children would attend school in Canada and the father signed a “Consent Letter for Children Travelling Abroad” to allow the mother to temporarily take the children out of Germany. He granted her consent, as well as physical custody of the children, for one year.
The mother took the children to Canada in 2013 and has remained there, despite the expiry of the consent form. Even before the consent period expired, the father started proceedings to bring the children back in both Germany and Canada, though the German courts were reluctant to rule on the case, because they felt they didn’t have jurisdiction.
Though one of the biggest factors Canadian courts look at when determining custody are the best interests of the children, when a custody dispute involves international border crossings, the Hague Convention is often triggered.
The Hague Convention is an international treaty between countries that aims to protect child custody arrangements that were made before the children were taken out of the country against the wishes of one parent.
In this case, the appeal court acknowledged that though it did consider the best interests of the children who preferred to remain in Canada, it wasn’t enough to base a decision on, because the Hague Convention was involved and the mother violated the father’s custody.
“It is important to remember, however, that although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents”, the court explained.
The court ordered for the children to move back to Germany where the father still resides.
For her part, the mother was dissatisfied with the decision and told CBC News, "I have to take this to the Supreme Court because the Hague Convention has become a means of legislated kidnapping".