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Parents
who remove children from their home countries in defiance of court orders and
custody agreements often create situations that are, from a practical point of
view, extraordinarily difficult for the abandoned parent. If the receiving
country ignores a Canadian request to return the children, or does not agree
that they should be returned, the other parent's options can be very limited.
That is so even if the receiving country is a signatory to the Hague Convention
on international child abduction.
 Toronto lawyer Jeffery Wilson, known for his work on
behalf of children, is approaching the problem in a new way. After failing to
have a client's children returned from an eastern European country, he has
taken the matter to the child welfare court, where he is hoping to obtain an
order that the children are in need of protection and that the government has a
duty to have them returned to Canada.
(Since the matter is now in that court, there is a ban on the publication of
the children's identities.)
Wilson's client, a father of three, spent four highly
contentious years battling with his wife over custody, access, and financial
issues. Last June, Superior Court Justice S.R. Goodman rendered an 83-page
judgment in the case detailing a tale of anguish that, as she noted, has left
the children, then nine, eight and four, "caught and living in the difficult
atmosphere of this extensive litigation between their parents for much of their
lives."
A
year earlier, Justice Hugh O'Connell referred to the history of the litigation
as bordering on the "obscene."
The
mother, who had de facto custody after separation, left the matrimonial home in
2000 with the children, alleging that the father had sexually abused one of the
boys. Two custody access assessments were subsquently completed, clearing the
father of those allegations. Indeed every expert involved with the children,
including the Toronto
police and the Children's Aid Society, found no basis for the allegations.
Nevertheless, the mother continued to make the allegations and to resist access
by the father.
Finally,
after numerous delays and adjournments, a date was set for trial last June. A
day before, the mother left Canada with the children, taking them to an Eastern
European country with the help of that country's embassy, which provided the
children with emergency passports. Their other passports were being held by Wilson, pursuant to an order restraining her from removing
the children from Ontario.
The
mother wrote a letter to the court saying that she fled "in a desperate attempt
to protect the boys from any further damage caused by their father and to
arrange proper therapy."
Goodman
decided to proceed with the trial in the mother's absence, given the history of
delay and her conclusion that the mother had "wrongly taken the law into her
own hands and made a conscious decision not to attend this trial."
She
also took into account the mother's decision to use an assessment by a
therapist from her own country, who lived secretly in the mother's home for
several weeks prior to the trial, to support her request for the emergency
passports.
Goodman
concluded that serious harm would come to the children if they remained with
their mother and custody was awarded to the father. So far however, the
European country where the children now live has refused to return them, or
even to fully address Canadian requests for their return.
"One
theme that emerges from this case is the abject failure of international law,"
said Wilson.
"The only one that enforces the Hague, and I do
a fair bit of this work, is Canada."
Eastern European countries in particular, he added, "are just terrible."
The
prime minister has been asked to intervene, the province
of Ontario has been asked, but there
has so far been no government co-operation, Wilson said.
As
a result, he brought a proceeding in the child welfare court in Toronto's east end
alleging that the children are in need of protection because of abuse that has
been perpetrated on them by the foreign country, as defined in the Child and
Family Services Act.
It
follows that Ontario
should be found guilty of the offence of failing to report abuse, he said. Wilson is also asking the
court to direct that the CAS be directed to help find the children.
"That
is getting everyone here very excited about whether the court has jurisdiction
to find the federal and provincial Crowns guilty of an offence. That would be
brand new," he said, adding that now government seems to be at least listening.
In
Wilson's view,
it's the same as if a doctor had failed to report abuse, although he agrees
that it's a "creative" way to put pressure on the government.
So
far, the Toronto CAS has argued that it has no jurisdiction because the
children are not in Ontario.
Kristina
Reitmeier, who is chief counsel for the Children's Aid Society of Toronto, said
the CAS is mandated to protect children in a defined territorial jurisdiction,
as designated by the Ontario Child and Family Services Act. There is no
jurisdiction for the court to make an order that would take effect outside the
province.
"I have never seen someone try to use the
child protection statute to enforce a custody order offshore, which is in fact
what he's [Wilson] doing. He's trying to use a child protection proceeding to
enforce Justice Goodman's custody order," said Reitmeier.
She
added that anyone at the CAS who has had anything to do with these children
thinks that they should be helped.
"I'm
just not sure that the creative strategy that is being employed is one that is
going to work."
But
in Wilson's view, the whole matter is an
embarrassment: the boys lived almost all of their lives in Canada. While
he lauds Canada
for returning children, he says it does "nothing" to compel states where
children have been taken to return them. The question is, what are the duties
of countries?
He
said what is different, and particularly galling about this case is that the
abduction was "state-sponsored. They knew what they were doing."
The
provincial court hearing has been adjourned until early December.
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