The MacDonald & Partners Team, Working for You
ARTICLES
Phyllis Brodkin, Partner
THE GRAVE RISK OF HARM TEST UNDER THE HAGUE CONVENTION:
TO DEFEND OR NOT TO DEFEND – DOES POLLASTRO HELP?
By Phyllis Brodkin & Michael Stangarone
MacDonald & Partners LLP
1. INTRODUCTION
A. Overview
The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) provides a uniform law that countries may adopt to compel the return of a child wrongfully removed from his or her habitual residence. It does not determine the merits of an underlying custody claim but rather provides a right of action for a party to seek the return of a child or children to a requesting state. The child must be under sixteen years of age and must have been wrongfully removed to, or is being wrongfully retained in a haven state. Both countries must be signatories to the Convention.
The Court must first consider whether or not the removal or retention is wrongful under the Convention. A removal or retention is wrongful if it is in breach of custody rights that were actually exercised or would have been exercised but for the removal or retention. Custody rights arise under the laws of the country in which the child was habitually resident immediately before the removal or retention and may be exercised jointly or alone. They may arise by operation of law, court order or agreement. Whether the child is habitually resident in the country from which he or she has been removed, is an issue that is raised and discussed in many cases as there is no definition of habitual residence in the Convention. It is often a most difficult issue and is beyond the scope of this paper.
For a comprehensive review of the Convention and how it operates, the starting point is the Supreme Court of Canada decision in Thomson v. Thomson. This case explains the history and operation of the Convention and should be reviewed carefully.
B. Public Policy Considerations
It is essential when one looks at the Convention to be aware of the purpose and policy goals behind the Convention, which is to insulate children in contracting states, from the negative effect of parental abduction across international borders. This powerful policy objective drives the Convention and gives it great power as international comity mandates great deference between contracting states. The preamble of the Convention states as follows;
The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
C. Operation of the Convention
Once a court has found that the retention is wrongful, the return obligation is mandatory, if less than a year has elapsed between the time of the wrongful removal and retention and the commencement of the return proceedings. The return is still required, even if a year has passed, unless the party who has removed the child has demonstrated that the child is now settled in their new environment. Even at that point, the court has discretion.
Although the operation of the Convention looks quite simple on its face, it is actually fraught with complexities that arise time and time again in ‘Hague’ cases. The case law that is of assistance in addressing the complex issues may originate from Canada or from any jurisdiction where the Convention is in force. As a result, Hague cases often involve research beyond the usual scope of inquiry.
D. Defences
There are several defences available to a wrongful removal or retention. They are as follows:
- More than a year has elapsed between the removal and the commencement of judicial proceedings and it can be demonstrated that the child is now settled into his new environment (Article 12);
- 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 (Article 13(a));
- The person ... having the care of the person of the child had acquiesced in the removal or retention (Article 13(a));
- There is a grave risk that his or her return would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation (Article 13(b);
- The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take into account of its views (Article 13);
- The return of the child would "not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms" (Article 20).
For the most part, however, defences raised by abducting parents are unsuccessful as the threshold test is very high and in fact is rarely met.
In this paper I will explore the “grave risk of harm“defence which is set out in Article 13 (b) of the Convention. Specifically, I will address the role of a practitioner who is retained by a person who is in the jurisdiction with a child or children from a country that is a signatory to the Convention. Most often than not, that person is the mother.
2. THE REMOVAL
A. Purpose of Convention
When the Convention was drafted it was not contemplated that the majority of abductors would be women. In this era of globalization, relocation to another jurisdiction is common. Women often relocate to be with new partners or husbands. When a relationship breaks down the instinct for mothers is often to return with their children to their place of origin which often they still consider “home”. Often this is where the person’s family and support systems are. The abducting parent may not think her actions were wrong or consider them kidnapping or abduction. The majority of feminists throughout the world agreed that the assumption on the part of the drafters of the Convention was never “to keep women in their place“ by a legal system that would in any way seem to be colluding with perpetrators of violence. Feminists argued that the Convention was prioritizing the return of children over and above the safety of women and children. The overriding theme in the courts is to never look as if they are undermining the spirit and word of the Convention.
It must be made absolutely clear to the party who has removed the child from their habitual residence that his or her action is considered a parental abduction and that there can be serious consequences for her actions. If the child’s other parent brings an Application for a child or children to be returned pursuant to the Convention, that parent will likely be successful in having the child returned as the Convention is a very powerful tool in facilitating the return of children. The assumption is that each country is well equipped to deal with and decide what is in the best interest of the children that habitually reside in that country and that the best interest of a child should be determined in the jurisdiction where the child has lived with both parents and where most of the relevant evidence usually is.
Judges begin with the presumption that removal of a child from another parent is for the most part a traumatic event with serious negative impact on the child. Children who have been abducted often become aligned with the parent that they are with and often feel that they are in hiding. Some children after being abducted are moved around constantly and sometimes have their identities changed. Some are kept home from school. They are often told distorted stories about the parent left behind. Children feel divided loyalties to the left behind parent and in certain ways feel like they are fugitives. There are numerous studies that confirm that children are negatively affected by abduction and the detrimental effects are long lasting. Most judges are well aware of this information.
The basic and accepted premise is that if a party wants to relocate, the proper and just way is to bring an application to the court in the jurisdiction in which the children are habitually resident, and request mobility and permission to relocate. This message must be given to clients very clearly.
B. Initial Advice
When you first meet with a client who is in Canada under these circumstances, you must conduct a very full and comprehensive interview with them. Often the client is retaining you to obtain a custody order. Often they have no idea that they have done something that can create tremendous repercussions both for themselves and for their child or children. You must immediately enlighten and educate them. You must give them a clear picture of the risks of not returning immediately to the habitual residence in order to deal with the matter in that jurisdiction.
Notwithstanding the client’s actions, your client is in a good bargaining position at this time. The left behind parent may not yet have taken any legal steps and may be reluctant to start the legal process for various reasons. There is always the possibility to begin direct negotiations towards an amicable resolution. The parent who has the children with them should try and reach an agreement to allow her to remain where she is without further legal involvement. It may make sense to offer a generous visitation schedule and satisfy the other parent that they can still have a role in the child or children’s life. A reduction in support can be offered in order to accommodate travel costs. Family and mutual friends can sometimes assist the parties. The case can be turned from one of abduction to one of mobility in certain situations.
A mediated resolution is also possible at this point. Skillful counsel can perhaps get the process in motion so that there is agreement that the party will either stay under agreed upon terms, or that their client will return to the habitual residence with the child or children in their care, with a view to a resolution of the outstanding issues. This would not be appropriate in a situation where there was high conflict and/or proven domestic violence. However, if there is any hope for an amicable resolution at this juncture, it should be investigated.
C. Risks
Counsel must make it abundantly clear that if the parent stays, there are very serious risks for a party who is wrongfully in the jurisdiction with the children. These risks should be spelled out very clearly to them.
In the event that the children are returned home with an order pursuant to the Convention, there is a good chance that they will be returned into the care of the parent who was left behind. The normal practice of a left behind parent is to quickly attend at court and obtain an order for custody, which is called “a chasing order”. It is called this because it is an order for custody obtained after the child has already been wrongfully removed from the jurisdiction. Although these orders are technically of little or no merit they sometimes can create a situation that results in a status quo which may continue for a lengthy period of time if the custody case does not move quickly. This can result in your client permanently losing custody of her child or children. If the matter is litigated in the requesting state after a contested Hague matter your client may face a judge with a very negative opinion of people who remove one child from another parent.
You must also advise your client that she will be exposing herself to costly legal proceedings and could be asked to pay her spouse’s legal costs if she is unsuccessful.
A party who abducts a child may face criminal charges. In Ontario, parental abduction is a criminal offence under the Sections 281, 282 and 283 of the Canadian Criminal Code. Authorization is required from the Crown Attorney before charges can be laid when there is an allegation of parental abduction. While my experience is that the crown attorneys in Ontario are not quick to lay charges, it is a real possibility facing an abducting parent in the requesting state and you will not likely know what the criminal policy or procedure is in that jurisdiction.
It is in the best interest of your client to encourage them to return on terms that address the best interest of all the parties and avoid these very serious consequences. The fact is that the ramifications and fallout from the abduction will linger for a very long period of time and can very easily impact on the ultimate resolution of custody. The sooner the parent gets back to the jurisdiction to deal with the issues, the better. As well, returning voluntarily without court intervention will most likely ameliorate the negative repercussions of the removal to a great degree.
You do need to review the facts your client tells you very carefully and determine if there is any viable defence available. If you think there has been acquiescence by the parent who was left behind or the child or children are refusing to return and are old enough so that their views and wishes can be determined you should look to the case law to see if the defence is truly going to be persuasive. You must ask yourself if your client can establish the defence on a balance of probability, as your client will bear the onus to do so.
The most common defence raised is known as the “grave risk defence” and it is this defence I wish to address. The real question I pose is whether the grave risk defence is effective and, if you are going to raise it on behalf of your client, what evidence should you produce to establish it?
3. THE GRAVE RISK OF HARM DEFENCE
A. Article 13(b) – Is it ever effective?
The first question that must be posed is, “what is grave risk?” The Supreme Court of Canada in Thompson enunciated the following:
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word "grave" modifies "risk" and not "harm", this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation". The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of art. 13(b) is harm to a degree that also amounts to an intolerable situation. Examples of cases that have come to this conclusion are: Gsponer v. Johnstone (1998), 12 Fam. L.R. 755 (Aus. F.C.); (Aus. F.C.); Re A. (A Minor) (Abduction), [1988] 1 F.L.R. 365 (C.A.); Re A. and another (Minors) (Abduction: Acquiescence), [1992] 1 All E.R. 929 (C.A.); Re L. (Child Abduction) (Psychological Harm), [1993] 2 F.L.R. 401 (H.C.); Re N. (Minors) (Abduction), [1991] 1 F.L.R. 413 (H.C.); Director-General of Family & Community Services v. Davis (1990), 14 Fam. L.R. 381 (Aus.); C. v. C., supra. In Re A. (A Minor) (Abduction), supra, Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
... the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree ... that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words "or otherwise place the child in an intolerable situation".
I hasten to add, however, that I do not accept Twaddle J.A.'s assessment that the risk contemplated by the Convention must come from a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver. As this Court stated in Young v. Young, [1993] 4 S.C.R. 3, [1993] 8 W.W.R. 513], from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. I should observe, however, that it would only be in the rarest of cases that the effects of "settling in" to the abductor's environment would constitute the level of harm contemplated by the Convention. By stating that before one year has elapsed the rule is that the child must be returned forthwith, art. 12 makes it clear that the ordinary effects of settling in, therefore, do not warrant refusal to surrender. Even after the expiration of one year, return must be ordered unless, in the words of the Convention, "it is demonstrated that the child is now settled in its new environment".
While the Supreme Court did discuss what constituted a grave risk, the Court did little to assist the lower courts in how to apply the defence. In Ontario, until 1999, it was believed that the grave risk defence was almost impossible to establish and there was little assistance in the case law. The premise and assumption always seemed to be that the requesting state could protect its own children. It was, and is, always difficult to prove to an Ontario court that this is not the case, although studies indicate that domestic violence and child protection issues are not treated the same in different parts of the world. However, the case law originating from countries such as Australia, England, Canada and the United States all seem to follow the premise that the country of a child’s habitual residence is perfectly equipped to deal with the risk of exposure to physical or psychological harm being raised by the abducting parent.
B. The Pollastro Case: Did it change anything?
As stated above, the full scope of Article 13(b) was not canvassed in the Thompson case. The quote referred to above gives little guidance to the lower courts. It is conceded that the risk has to be something greater than would normally be expected from taking the child from one parent and placing him or her with the other. It must be one of substantial, not trivial, psychological harm. It is conceded the risk contemplated has to be more than ordinary trivial risk and words are used such as obvious, substantial, severe and threatening to define the level of harm. The actual level of proof of the threat of harm was not made clear nor was the evidence required to raise a successful defence delineated or canvassed by the Court.
Prior to 1999, when the defence was raised the court often took the wording of the section in the literal sense and found that abuse had to be perpetrated on the child directly and not on the parent. Undertakings were routinely given by the requesting parent in order to ensure the court that the transition would be safe. However, even with these undertakings children were being returned by mothers to situations in which the mothers claimed they were at risk and of which they were fearful. The women were being ordered to place themselves in close proximity to the person she had left. Often she was more apprehensive after escaping than prior to her leaving, especially if she had now disclosed publicly the details of the abuse to the court. Often this meant leaving the haven state where the women had family and had found emotional and often financial support. A certain amount of control was given to the abuser who had forced the return.
In the 1999 Ontario Court of Appeal decision of Pollastro v. Pollastro , the wife was allowed to remain in Ontario. The court found the domestic violence perpetuated against the mother had an impact on the child. Justice Abella, as she then was, came very close to actually stating that abuse to a mother is abuse to a child. She stated the following at paragraph 33 of the decision:
Although every case depends on its own facts and the onus remains on the person resisting the child's return, it seems to me as a matter of common sense that returning a child to a violent environment places that child in an inherently intolerable situation, as well as exposing him or her to a serious risk of psychological and physical harm.
In Pollastro, the husband and wife were married in California on August 24th, 1996. The Appellant mother was a Canadian Citizen. The respondent was an American Citizen. There was one child in the marriage, Tyler Benjamin Pollastro, who was born February 27th, 1997 in California. The child had dual citizenship. The parties resided in California when they separated, on or about September 7th, 1997.
The Appellant alleged a history of significant spousal abuse. She stated that the Respondent had ongoing problem with drugs and alcohol abuse, anger management difficulties and a general lack of basic parenting skills. She also described incidents where the Respondent put the child directly in danger.
The sworn affidavit evidence confirmed and attested to the allegations of abuse. Various affidavits from independent witnesses corroborated the allegations of abuse, the bad character of the Respondent and the abusive situation attested to by the Appellant. Sworn statements of the deponents attested to the Respondent’s attempt to burn the Appellant with a cigarette and his throwing coffee at the Appellant while the child was in her arms. Witnesses observed physical injuries to the Appellant and the drug use of the Respondent. There were numerous reports of his general instability. Additional uncontroverted factual evidence gave credence to the allegations of the Appellant. The Metropolitan Toronto police observed the injuries of the Appellant and a police report was filed. The criminal record of the Respondent included a conviction. Medical evidence described injuries suffered by the Appellant.
The weightiest evidence in the Pollastro case was the tapes of the Respondent threatening the wife when she was in Canada and he was in California. Those tapes confirmed that the wife would be in danger if she returned with the child to California. The Court of Appeal found that returning the child to such a violent environment would place a child in an intolerable situation and would expose the child to a serious risk of psychological or physical harm. It was the threatening phone calls made by the father to the mother after she had removed the child from California that convinced the court that the father had an ongoing inability to control his temper. His propensity for violence was clear.
4. EVIDENTIARY AND PROCEDURAL CONSIDERATIONS
A. Cases since Pollastro
Since 1999, Pollastro has often been raised in cases, but with varying degrees of success. The risk was so manifestly clear in Pollastro that the case can easily be distinguished on the facts. It has turned out to be the exception rather than the rule. There are many cases involving the Convention that go unreported. Based on our review of twenty-one reported decisions since 1999, there are only four decisions in which the Court invoked the Pollastro test to order that the children not be returned .
(i) High Threshold Test & Evidentiary Burden
The cases since Pollastro confirm that the threshold test under Article 13(b) is a high one, and the evidence that must be marshaled to meet that test must be strong, sound and corroborated. In his annotation to M.(V.B.) v. J.(D.L.) the late Professor Mcleod writes that Canadian Courts have insisted on strong evidence of risk of harm before refusing to return a child pursuant to Article 13. Unsubstantiated innuendos or general suggestions of danger are insufficient. The Court in Mahler v. Mahler confirms that the onus is on the party who removed the children to prove on a balance of probabilities that the children would be exposed to harm or otherwise placed in an intolerable situation if returned.
In Mahler, the Wife’s affidavit attempted to prove psychological harm under Article 13(b) by drawing a link between the Husband’s conduct and his drinking, and the child’s bedwetting. Given the conflicting and inconsistent nature of the evidence, the Court could not conclude that the Wife had shown that the Husband posed a risk to the children. The Court held that the Wife’s refusal to return the children to New York was untenable and unreasonable. The Court wrote: “Unreasonable, because safety concerns for herself and the children are neither proved, nor of the kind of degree set out in Pollastro. The test is a stringent one”.
(ii) Proving a pattern of abuse and raising it in the signatory state
In Katsigiannis v. Kottick-Katsigiannis , Justice Seppi distinguished the case at bar from Pollastro and ordered the children returned to Greece as there was a paucity of evidence of a grave risk of harm. Her Honour held that the facts set out in Pollastro of “…extreme and repeated violent assaults, drug abuse and evidence of the child’s resultant agitated…” were not proven. To raise a successful grave risk of harm defence, counsel must lead evidence of a pattern of behavoiur and violence that could harm the children in the event they were returned. Katsigiannis confirms that an isolated incident of assault will not meet the Pollastro test.
Evidence of physical abuse in court proceedings commenced in the signatory state will help meet the test under Article 13(b). If your client alleges abuse here, but failed to raise the abuse in the signatory state, her position will prima facie lack credibility. In Moller v. Despoja-Moller , the Court was struck that the mother’s ‘horrendous history of abuse and sexual perversion on the part of the father’ was not raised in the custody proceedings in Germany. The mother did not satisfy the high test under Article 13(b) in the circumstances.
In Sierra v. Sierra the Court did not find that the mother had satisfied her onus under the terms of Article 13(b) of the Convention notwithstanding that there was medical documentation supporting the mother’s allegation of serious physical assaults prior to separation. However, she did not raise those allegations in court proceedings in Florida. The Court found it difficult to reconcile the history of physical abuse and a “fear for her life”, with the mother’s willingness to transport the children to New York for access with their father. As well, there was no evidence that the mother sought protection or help from the authorities in Florida, or raised the issue of spousal abuse or threats and intimidation prior to removing the children to Canada. The mother’s conduct in Florida was fatal to her defence. The children were ordered returned.In New v. New , Justice Flynn returned the children to Kentucky as the evidence in the case did not compare to the strong evidence of the father’s mental health problems, substance abuse problems and abuse of the mother in Pollastro. In New, the fact that the child had never been the subject of a child protection proceeding in Kentucky factored in the Court’s decision to order the return of the children.
(iii) Ensuring no gaps or exaggerations in the evidence
There must be no gaps in the evidence of physical or psychological abuse, and counsel must ensure that the allegations are not exaggerated. The Court will not find a grave risk of harm as contemplated in Pollastro where the degree and frequency of the alleged violence is exaggerated and uncorroborated. In Zaman v. Khan , there was evidence that the mother left the child in the father’s care while she was at work, a considerable gap in her evidence. The Court found that the child would not be placed in an intolerable situation if returned to the father in New Zealand in the circumstances.
(iv) Corroborating & Credible Evidence
Third party evidence of substantial abuse is vital to a successful grave harm defence. In Ndegwa v. Ndegwa the Court accepted the mother’s evidence that the children would suffer serious harm if returned to Kenya as the evidence of abuse was corroborated by various third parties including the children’s teachers.
In K.(A.) v. F.(E.) , the Court found many similarities between the case at bar and Pollastro. An experienced clinical psychologist in that case provided a report outlining the family violence and the grave consequences it could have on the children. In light of that third party evidence, the Court found that the Wife had discharged her onus under Article 13 and provided a grave risk if the children were returned.
In Isakhani v. Al-Saggaf , the mother fled from the father in France. Her sexual molestation allegations were credible and evidence of the abuse was supported by a number of witnesses. The evidence of the child was admissible as a principled exception to the hearsay rule. The French authorities improperly assumed that the mother was lying and unfairly refused to consider evidence which had later become available. Although the French court system was capable of overseeing cases of abuse, the French court had not acted to protect the child in this particular case. The mother was not ordered to return in the circumstances of that case.
(v) Evidence of abuse that shocks the conscience of the court
Evidence of pervasive and persistent abuse of the mother and child at the hands of the father will meet the Pollastro test. In the recent decision of Rajani v. Rajani , Justice Backhouse of the Ontario Superior Court of Justice cited Pollastro for the proposition that family violence can be found to present a grave risk to a child. Her Honour concluded as follows:
“I am satisfied the wife has brought herself within the principles elaborated by the Court of Appeal in Pollastro, supra. The serious and grave risk of harm to the child if returned to Tanzania is twofold: he will continue to witness and be negatively impacted by the husband’s abuse of the wife and his uncontrollable and violent temper and the husband will make every effort to keep the child from the wife. Therefore, the husband’s application is dismissed.”
B. Marshalling the Evidence to Meet the Test
In the event you believe that you do have a bona fide “Pollastro” situation, what should you be telling your client to do? The first thing to be aware of, as confirmed by the case law above, is that it is impossible to be successful in raising a grave risk defence without proper corroborative evidence. The questions you should be asking are as follows:
- Can the client provide a detailed history of their relationship including all of the details of the alleged violence against the parent or the child, without any evidentiary ‘gaps’?
- Are there any medical reports or hospital reports that refer to the request? If so, how quickly can they be obtained?
- Are there any police reports of any incidents of domestic violence? Are there any outstanding restraining orders or orders for protection?
- Are there any witnesses who can swear affidavits who have observed firsthand any incidents of violence?
- Are there any people who can substantiate the allegations with information given from the victim?
- Are there any reports from any Children’s Aid Society or other child protection services?
- Are the children old enough to give a report to the Children’s Aid Society about what they have experienced or witnessed?
- Is there a file with a previous lawyer that includes any affidavits or other information?
C. Time is of the Essence
One must be ready to respond quickly to an Application as applications pursuant to the Convention are expedited. Counsel will have little time to amass a significant amount of information between the time you are served with the application and the hearing date. It would be best to have all of the information ready to respond and even better to initiate the custody application putting all the information forward as quickly as possible.
If a Hague Application is started the court will be served with a Notice pursuant to Article 16 of the Convention which precludes a court from determining the merits of custody until the Hague Application is dispensed with. However, your materials with be available for the Application and, if your client is successful, for the custody Application.
5. CONCLUSION
The test under the Convention is not what is in the best interest in the children; rather, it is based on the fact that the return of children to their habitual residences is in the interest of children. It would seem that unless one can provide, as was the situation in the Pollastro case, extensive credible evidence of a parent’s physical and verbal abuse, uncontrollable temper, hostility, irrationality, or completely unreliable and irresponsible parenting, the defence will not likely be successful.
The Pollastro test has been a very difficult threshold to meet not only in Canada but in other countries as well as it is often cited worldwide. Consequently, you must make certain that you do not overstate the possibility of success for a client that has come to Canada with a child or children alleging abuse.
If the party removing the child or children cannot provide strong evidence to substantiate and corroborate her allegations of physical or emotional abuse, s/he will likely not be successful and the child will be returned. The risks are great and one should recommend that the client only choose to go down this path if he or she truly believes that there is a very strong chance for success based on the evidence obtained.
SCHEDULE “A” – CASES SINCE POLLASTRO v. POLLASTRO
1998 CarswellOnt 4420 (Ont.C.A.) (“Pollastro”)
Marshalling the evidence to meet the Grave Risk of Harm Test under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction
Case |
Cases where Pollastro defence raised |
Summary of Decision |
Finizio v. Scoppio-Finizio 1999 CarswellOnt 3018 (Ont.C.A.) Macpherson J.A. |
Children returned |
The Husband appealed the decision of Paisley J. dated June 23, 1999 in which he refused to order the return of the children to Italy. His Honour found that the Wife had wrongfully removed the children. However, he invoked Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) in refusing to order their return because of the potential harm the return might cause to the children. The Husband challenged Justice Paisley’s decision. The Court of Appeal allowed the Husband’s appeal. The Court wrote that “there is no question that in certain circumstances a physical attack on a mother could cause psychological harm to children…However, the situation in the Finizio/Scoppio-Finizio family is far removed from the terrifying situation chronicled by Abella J.A. in Pollastro”. The situation in Finizio involved an alleged single incident of assault at the summer home in Italy. |
Mahler v. Mahler 1999 CarswellMan 598 (Man.Q.B.) Little J. |
Children not returned |
The Court held that the onus is on the Wife to prove on a balance of probabilities that the children would be exposed to harm or otherwise placed in an intolerable situation if returned. The Wife had a ‘gravity of risk’ test to meet; the best interests of the child is not the test (Thomson v. Thomson [1994] 3 S.C.R. (S.C.C.)). The Court found no evidence that the Husband had ever physically harmed the children. On the issue of psychological harm, the Wife’s affidavit attempted to draw a link between the Husband’s conduct and his drinking, and the child’s bedwetting. Given the conflicting and inconsistent nature of the evidence, the Court could not conclude that the Wife had shown that the Husband posed a risk to the children. The Court held that the Wife’s refusal to return the children to New York was untenable and unreasonable. The Court wrote: “Unreasonable, because safety concerns for herself and the children are neither proved, nor of the kind of degree set out in Pollastro. The test is a stringent one”. |
New Brunswick (Attorney General) v. Majeau-Prasad 2000 CarswellNB 359 (NBQB) Robichaud J. |
Child returned |
The Wife raised the defence of “grave risk of harm” in opposing the return of the child to New Zealand. The Wife’s evidence focused on verbal abuse she allegedly experienced during the marriage, which she described as ‘intolerable’. After hearing the evidence of the Wife, the Court found that she exaggerated both the degree and frequency of the verbal abuse. The Court found that “while there are cases where grave risk of harm to a mother will also constitute a grave risk of harm to a child, this is not one of those cases (see for example Pollastro v. Pollastro).” The Court concluded that neither the disruption caused by return of the child to New Zealand nor re-uniting with his father amounted to the ‘grave risk of harm’ or the ‘intolerable situation’ contemplated by the Convention. |
Katsigiannis v. Kottick-Katsigiannis 2000 CarswellOnt 4469 (Ont.S.C.J.) Seppi J. |
Children returned |
There was no evidence that the Husband had ever harmed the children or that there was any risk that harm would come to the children if returned to Greece. The Court held that even if an assault alleged by the Wife did occur, there was no evidence of a pattern of behaviour and violence that could harm the children were they returned. The Court stated the following: “this case is distinguished from Pollastro v. Pollastro where the facts leading to the finding that the child in question would be put at “grave risk” of being exposed to “an intolerable situation” if returned to his habitual residence, included extreme and repeated violent assaults, drug abuse and evidence of the child’s resultant agitated state”. |
Sierra v. Sierra 2001 CarswellOnt 1869 (Ont.S.C.J.) Shaughnessy R.S.J.
|
Children returned |
The Court reiterated that Pollastro stands for the proposition that returning children to a violent environment can place children in an inherently intolerable situation and, as well, expose them to a serious risk of psychological and physical harm. The Court stated that it is relevant to consider whether there is a serious possibility of physical or psychological harm to the parent on whom the children are dependent. In certain circumstances, a physical attack on a mother can cause psychological harm to the children. In this case, there was medical documentation supporting the mother’s allegation of serious physical assaults prior to separation. However, the mother did not raise those allegations in court proceedings in Florida where the issue of domestic violence was a serious issue for consideration by that Court. The Court found it difficult to reconcile the history of physical abuse and a “fear for her life”, with the mother’s willingness to transport the children to New York for access with their father. As well, there was no evidence that the mother sought protection or help from the authorities in Florida, or raised the issue of spousal abuse or threats and intimidation prior to removing the children to Canada. |
K.(A.) v. F.(E.) 2001 CarswellQue 1246 Marx J.C.S.
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Children not returned |
The Court found many similarities between this case and Pollastro. The Husband had shown extreme disdain towards his wife. He abused her emotionally, physically and verbally. An experienced clinical psychologist provided a report outlining the family violence and the grave consequences it could have on the children. The Husband refused to meet with the psychologist. The Court found that the Wife had discharged her burden in showing a grave risk if the children were ordered to return to Israel. |
Struweg v. Struweg 2001 CarswellSask 420 (Sask.Q.B.) McIntyre J. |
Child returned |
The Wife argued that the child was at risk of psychological harm if exposed to the Husband’s homosexuality. The Court followed Pollastro in holding that it was relevant to consider the serious possibility of physical or psychological harm coming to the parent on whom a child may be dependent. The Court found that the evidence of abuse in Pollastro was substantial. In this case, there was no evidence of a history of physical abuse. A police report indicated that the Wife had stated that the Husband was not normally violent. She described limited instances of domestic violent, and acknowledged that the Husband had not been physically abusive to the child. There was no evidence that the Husband’s homosexuality placed the child at risk of any physical or psychological harm. The Court did not find that the criteria under Article 13(b) were met and ordered the child returned to Pennsylvania. The Court stressed that the determination was not a custody determination. Any assessment of the Husband’s sexual preference as a factor in determining an appropriate parenting arrangement could be made in Pennsylvania. |
Zaman v. Khan 2001 CarswellAlta 951 (ABQB) Veit J. |
Children returned |
The Court ordered the child returned to New Zealand. Both parties made allegations that the other was violent and short-tempered. The Court held that the treaty standard under Article 13(b) is a high one. There was evidence that the Husband cared for the child while the Wife was at work. The Court therefore held that it would not put the child in an ‘intolerable situation’ if returned to New Zealand while the courts there decide on what parenting regime is in the child’s best interests. That issue could be determined by holding a viva voce hearing in the New Zealand Court in light of the conflicting affidavit evidence. |
Ndegwa v. Ndegwa 2001 CarswellOnt 2528 (Ont.S.C.J.) Mackinnon J. |
Children not returned |
The Court accepted the mother’s evidence, which was corroborated by third parties, including the children’s teachers, that she and the children had lived in an abusive and dangerous environment. The Court found, on a balance of probabilities, that the children would suffer serious harm if removed from Ontario and returned to the violent environment in which they resided in Kenya. |
Moller v. Despoja-Moller 2001 CarswellOnt 4612 (Ont.S.C.J.) Belleghem J. |
Children not returned |
The mother detailed a ‘horrendous history of abuse and sexual perversion on the part of father’, which the father denied. In resolving the conflicting evidence, the Court was struck by, among other things, the fact that the horrendous allegations were not raised in the custody proceeding in Germany; the mother had three months to raise the allegations in Ontario and they appeared for the first time in her affidavit the morning of the court appearance; and the lack of corroboration of any of the mother’s allegations. The mother did not satisfy the high test under Article 13(b) as a result. |
Kovacs v. Kovacs 2002 CarswellOnt 1429 (Ont.S.C.J.) Ferrier J. |
Child not returned, but for different reasons |
The Court stated that there must be “considerable evidence” to meet the grave risk test under Article 13 and Pollastro. Justice Ferrier found that there were many gaps in the evidence tendered by the mother concerning alleged abuse of her and the child at the hands of the father. Were it not for fresh evidence concerning the conviction of the father, and his attempt to defraud the court with the filing of false documents and affidavits, his Honour would have ordered the child returned to Hungary to permit the courts in that country to decide the question of his custody on the merits. The Child was not returned because the father was incarcerated immediately after the trial. |
Gopher v. Gopher 2002 CarswellSask 347 (SKQB) McIntyre J. |
Children returned |
The Court confirmed that Pollastro makes clear that the test of whether to return a child under the Convention is not based on who should have custody. The evidence in this case did not indicate that the mother fled with the children to Saskatchewan from Montana to avoid physical or psychological harm to the children. She chose to marry, have children and reside in the State of Montana. The children were ordered returned to Montana, which was the appropriate jurisdiction to determine the custodial issues. |
Smushkevich v. Gartner 2002 CarswellOnt 1593 (Ont.C.J.) Brownstone J. |
Children returned |
The mother invoked Article 13(b), alleging that the father and his family were heavily involved in the “Russian Mafia” in California and numerous criminal activities. She acknowledged that the father did not have a criminal record, that she had never been granted a peace bond or restraining order, and that she was charged with criminal offences of dishonesty in the United States. As well, all of the mother’s concerns had already been referred to in an assessment report requisitioned for the California court proceeding. The court in California was made aware of the mother’s concerns and gave them appropriate weight in making the custody orders there. The mother’s new allegations of sexual abuse were not verified by the Children’s Aid Society. In the circumstances, the children were returned to California. |
Jabbaz v. Mouammar 2003 CarswellOnt 1619 (Ont.C.A.) Rosenberg, MacPherson, Simmons JJ.A. |
Child returned |
The father agreed that the mother could move to California with the child where she had a relationship with a permanent resident of the U.S. The mother and child lived there for three years at which time her relationship ended. As a result of her instability, the parties agreed that the father would have extended access with the child in Ontario after his summer access. When the mother requested the child’s return, the father refused to release the child and obtained an interim interim custody order in Ontario. The Court ordered the child returned. There was no evidence that the child would be harmed by continuing to live with the mother. Her uncertain immigration status in the United States did not create a grave risk that the return of the child to the mother would place the child in an intolerable situation. |
Varvara v. Costantino 2003 CarswellOnt 5903 (Ont.C.J.) Zuker J. |
Children not returned |
The mother fled Italy with the children to escape the abusive father. The children were ordered to remain in Ontario as the children feared their father, who was found in the Ontario court to be abusive. The affidavit material filed by the mother and third parties disclosed that the father was abusive. The Ontario Court granted the mother a final custody order and final restraining order, with no access to the children based on that affidavit evidence. The Court found evidence and support for domestic violence and cruelty in Canada as well as in Italy by the father, and there was no evidence of any contrite behaviour by him. The Court found that the children had been exposed to psychological and physical harm. |
M. (V.B.) v. J.(D.L.) 2004 CarswellNfld 284 (NLCA) Cameron, Welsh, |
Appealed for different reasons; new trial ordered, result unknown. Annotation by James G. Mcleod useful |
In his annotation, the late James G. Mcleod writes that Canadian courts have insisted on strong evidence of risk or harm before refusing to return a child pursuant to Article 13. Unsubstantiated innuendos or general suggestions of danger are insufficient. In the case, the mother’s evidence seemed to cross the Article 13 threshold. The application judge apparently accepted that there was cause for concern about the child’s safety by ordering that the child be placed in the care and custody of a child protection agency and not returned to the father until all child protection issues and living conditions were reviewed by a Washington State court. The Court of Appeal concluded that the proceedings for the child’s return had not been commenced within one year of the child’s removal. The Appeals Court allowed the appeal and ordered a new hearing to decide whether the child should be should be returned, having regard to the risk, if any, from such return. |
R. (D.) v. K.(A.A.) 2006 CarswellAlta 515 (ABQB) Rooke J. |
Child not returned |
The parties resided in France with the child. The father allegedly sexually abused the child in France. The mother reported the allegations of abuse to the French authorities, with little result. The mother fled with the child to Canada. The father’s application for the child’s return was dismissed. The child was at grave risk if returned as contemplated by Article 13. The sexual molestation allegations were credible and evidence of the abuse was supported by a number of witnesses. The evidence of the child was admissible as a principled exception to the hearsay rule. The child was incapable of testifying in court. The French authorities improperly assumed that the mother was lying and unfairly refused to consider evidence which had later become available. Although the French court system was capable of overseeing cases of abuse, the French court had not acted to protect the child in this particular case. |
Isakhani v. Al-Saggaf 2006 CarswellOnt 8382 (Ont.C.J.) Nevins J. |
Child not returned; not case pursuant to Convention, but Pollastro test applied |
The mother made allegations of physical and verbal abuse, including a serious incident where the father beat her outside the home and bit her on the back on a separate occasion. She had photographs of the injuries allegedly sustained. However, police and medical records were inconclusive. Some of the mother’s own evidence was uncorroborated. She had letters from friends attesting to the abuse, some of which were unsworn and uncorroborated. The mother made bald, blanket allegations of abuse. The father denied the allegations. However, he did admit to being guilty of some abuse in an e-mail. The Court could not completely reject out of hand or completely accept the affidavit evidence. The Court found on a balance of probabilities that the situation was violent and that the child would be placed in an intolerable situation if the mother and child were returned to Dubai. The Court in Dubai made an order that the mother and child were to return to live with the father. In light of that order, the violence and a report from Amnesty International which was accepted as evidence, the Court found that there was a reasonable likelihood that the violence and abuse to which the mother had been exposed to would continue and that she and the child would not be adequately protected from it in Dubai. The Court accepted jurisdiction under section 25 of the Children’s Law Reform Act as a result. |
Wedig v. Gaukel 2007 CarswellOnt 2479 (Ont.S.C.J.) D.L. Gordon J. |
Child returned |
The mother alleged that the father assaulted her in March 2005. The father denied the assault. Criminal charges were withdrawn. The Court held that the allegations, if true, did not meet the threshold test of placing the child in a grave risk of harm. The Court held that the facts in the Pollastro and Kovacs decisions were “much more severe than in the case at bar”. |
New v. New 2007 CarswellOnt 3094 (Ont.S.C.J.) P.J. Flynn J. |
Child returned |
The mother removed the child from his habitual residence in Kentucky to Brantford, Ontario. There was no direct evidence that the child was ever harmed physically or psychologically by the father or by anyone else at any time, nor was the father ever suspected of any such harm. In fact, until the mother removed the child from Kentucky, all the evidence satisfied the Court that the child was in the father’s care and control with the complete consent of the mother for over a year. The mother took no steps to involve the authorities in Kentucky while the child was in the father’s care. The Court states the following: “…in Pollastro, there was strong evidence of the father’s mental health problems, substance abuse problems and strong evidence of substantial abuse of the mother. None of that obtains in our case. Moreover, in our case, the mother kept returning to the father and to the child. It simply cannot be that she had a real fear for her own physical or psychological security”. The Court found that the risk of harm must be confined to a risk that the return of the child to Kentucky would place him in an intolerable situation, and that the risk must be a grave risk. The Court found no such grave risk. The child had never been the subject of a child protection proceeding. The mother had never alleged a physical or psychological risk. There had been no allegation that the child had been harmed physically or psychologically. There was not even an allegation that the father was suspected of harming the child, nor was there an allegation that the father was not available to care for the child. There was no evidence that any risk that might exist had increased in any way since the mother let the child live with the father. In the circumstances, the Court held that the mother had not satisfied the onus under Article 13(b) and ordered the child returned to Kentucky. |
Rajani v. Rajani 2007 CarswellOnt 5834 (Ont.S.C.J.) Backhouse J. |
Child not returned |
The wife removed the child from Tanzania after promising the court that she would return the child. Instead, she fled to Toronto. The wife alleged that her husband physically and emotionally abused her; that there was a risk if she returns of further physical and psychological abuse and intimidation; that the courts of Tanzania are corrupt; and that the family law in Tanzania is unfair to wives in custody disputes. The Court preferred the Wife’s evidence to that of the Husband. The Court did not find the husband to be a credible or reliable witness. There was third party evidence of extreme physical and emotional abuse at the hands of the husband. The Court found that the wife was abused physically and psychologically throughout the marriage. The abuse was persistent and the psychological abuse continued after separation, and would continue if the wife was required to return to Tanzania. The Court found that the abuse had affected the child, and accepted that the wife was terrified to return to Tanzania. The Husband had obtained a final custody in Tanzania. The Court found that there was a serious risk that he would use the order to exclude the wife from the child’s life, which would be devastating for him as the Wife has been his only primary caregiver. The Court cited Pollastro for the proposition that family violence can be found to present a grave risk to a child. Justice Backhouse concludes as follows: “I am satisfied the wife has brought herself within the principles elaborated by the Court of Appeal in Pollastro, supra. The serious and grave risk of harm to the child if returned to Tanzania is twofold: he will continue to witness and be negatively impacted by the husband’s abuse of the wife and his uncontrollable and violent temper and the husband will make every effort to keep the child from the wife. Therefore, the husband’s application is dismissed.” |