Ontario Civil


Conflict of Laws

FAMILY LAW

Children

Mother wrongfully retained child but father acquiesced in that retention

Parties decided to attend school in Colorado but mother continued her employment in Ontario by returning for few days every month to work. Parties were living in Colorado when child was born. Mother took child for trip to Ontario to visit, but she decided she was going to remain in Ontario with child. Father accepted employment offer in Colorado after completing education. Application judge dismissed father's application, pursuant to Hague Convention, for finding that child was wrongfully retained in Ontario by mother and that she be returned to Colorado. Judge found that mother wrongfully retained child but that father acquiesced in that retention. Judge found that child was habitually resident in Colorado and found that it was irrelevant that parties were only in Colorado for education because child was born there and lived there with parties. Judge found sufficient evidence to conclude that father acquiesced in retention of child in Ontario by mother. Father appealed. Appeal dismissed. Father did not demonstrate palpable and overriding error or misapplication of law to facts. Judge did not give any consideration to timing of father's application. While there could not be acquiescence in presence of attempts at reconciliation, father's evidence did not establish that attempts at reconciliation. Evidence reasonably supported finding that by his words and conduct, father led mother to believe that he was not asserting claim for summary return of his child, and acquiesced to child remaining in Ontario.
Agboola v. Unoh (2017), 2017 CarswellOnt 9013, 2017 ONSC 3572, T. Lederer J., J. Trimble J., and L. Sheard J. (Ont. Div. Ct.); affirmed (2016), 2016 CarswellOnt 17660, 2016 ONSC 6779, J.W. Scott J. (Ont. S.C.J.).

 


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