Focus On - New strategy in child abduction case

Parentswho remove children from their home countries in defiance of court orders andcustody agreements often create situations that are, from a practical point ofview, extraordinarily difficult for the abandoned parent. If the receivingcountry ignores a Canadian request to return the children, or does not agreethat 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 Conventionon international child abduction.

This child custody case highlights the abject failure of international law, says Jeffery Wilson.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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