Her lawyer calls this a significant development in Canadian international family law
The Ontario Superior Court recently ruled that the rights granted in 2015 and 2023 orders entitled a mother to determine her child’s residence, which constituted custody rights under the Hague Convention on the Civil Aspects of International Child Abduction.
“This judgment is a significant development in Canadian international family law,” comments Daniel Walker, managing partner of Bobila Walker Law in Toronto. “For the first time, an Ontario court has confirmed that a non-removal order and reciprocal undertakings issued by a Hong Kong court confer ‘rights of custody’ under Articles 3 and 5(a) of the Hague Convention, even where one parent holds a ‘sole custody’ order.”
In the case in question, the parties had a relationship in Hong Kong starting in 2009, had a child born in September 2010, and separated in 2012.
That year, the applicant mother obtained an order from the Hong Kong Family Court, which granted her custody, care, and control of the child. The order provided the respondent father with reasonable access.
District Judge Grace Chan made a Feb. 10, 2015 order banning the removal of the child from Hong Kong until a further court order, and issued an Apr. 25, 2016 final order granting the mother custody, care, and control, with an access schedule in the father’s favour.
In 2018, the mother applied for permission to relocate with the child to Taiwan.
On Dec. 6, 2019, Judge Susan Wong denied the mother's relocation application. The judge ordered the father to:
The mother returned to the Hong Kong court in July 2022 to enforce her parenting time. She began travelling weekly to Hong Kong to spend time with the child in August 2022. She claimed that the father assaulted her during a parenting exchange in December 2022.
On Aug. 2, 2023, Judge J. Cheung varied the 2015 order to permit the child to leave Hong Kong for the period from Aug. 2, 2023 to Aug. 31, 2023, solely to go to Taiwan for parenting time with the mother. This order was conditional on the parties’ reciprocal undertakings that each would return the child to Hong Kong when ordered to do so.
On May 28, 2024, the mother’s counsel wrote to the father to schedule her parenting time over the summer vacation.
The father responded that he enrolled the child in an international summer school program and planned to make unilateral decisions in the child’s best interests if the mother refused to align her parenting schedule with the summer school plans.
On June 19, 2024, the mother's counsel sent her summer proposal. On June 28, 2024, the father said he would cancel the summer school plans and allow the child to travel to Taiwan at the usual time to ensure compliance.
However, the father moved with the child to Canada without the mother’s knowledge or consent, rather than bringing the child to Taiwan for parenting time with the mother.
On July 11, 2024, the mother applied for an order finding the child’s wrongful removal from Hong Kong. The next day, the Hong Kong High Court issued an order that made the child the court’s ward.
Last June 5, the mother brought the present application. She alleged that:
The father wanted to dismiss the mother’s application. He requested a declaration that the Hague Convention’s return provisions did not apply because the mother only had access rights, not custody rights, under the Hong Kong orders.
The Ontario Superior Court of Justice ordered that the mother had custody rights under art. 3 and 5(a) of the Hague Convention, which governed the Hague application’s merits. The court also asked the parties to return to address the timetable for hearing the merits.
The court referred to cases that provided Hong Kong’s general legal principles that a court order’s non-removal clause aimed to entitle a non-custodial parent to object to removing a child from Hong Kong, not just protect that parent’s access rights.
The court stated that the 2015 order, which prevented the removal of the child from Hong Kong without a further court order, continued to bind the parties, subject to the variation in the 2023 order.
The court added that the 2023 order solely sought to allow the child to travel to Taiwan to enable the mother’s summer access, conditional upon the parties’ undertakings to bring the child back to Hong Kong when called upon to do so.
The court ruled that the 2023 order, alongside the 2015 non-removal order, granted the mother the rights to:
Considering the Hague Convention’s objects and purpose, the court held that these rights entitled the mother to determine the child’s place of residence, which amounted to custody rights under art. 3 and 5 of the Hague Convention.
“The ruling harmonizes Ontario jurisprudence with leading international authorities and fills a doctrinal gap left by Thomson v. Thomson (SCC, 1994),” Walker says.
Considering its procedural and substantive implications, the case "will serve as an important precedent for practitioners and judges managing cross-border parenting disputes under the Hague Convention,” Walker adds.
Walker acted as counsel for the mother in this matter.
