CANADA - BRITISH COLUMBIA
Supreme Court of British Columbia
Superior Appellate Court
CANADA - BRITISH COLUMBIA
19 August 2020
Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a)
Salminen v. Garvie, 2011 BCSC 339; Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2009 BCSC 1303; Canlan Investment Corp. v. Gettling (1997), 37 B.C.L.R. (3d) 140 (C.A.); Ludwig v. Ludwig, 2019 ONCA 680; Re C (Children),  EWCA Civ 980 [Re C (Children)]; Office of the Children's Lawyer v. Balev. 2018 SCC 16
The parents married in 2014 and had a child in 2015. They are both citizens of New Zealand. The parents separated in December 2018. The mother received a one-year fellowship proposal in Vancouver and the parents agreed that the child would go with her and that the father would spend some time there. The father claimed that the agreement was for the child to return New Zealand after one year, in July 2020. The mother denied that such an agreement was made and asserted that, during their marriage, the parties had planned to move to Vancouver and that these plans had not changed after they separated, though the father attempted to change this plan in March 2019.
The father postponed his move to Vancouver until November 2019, just after the mother filed a notice of family claim (NFC) on the Canadian Justice seeking to obtain full custody rights, recognizing the British Columbia Supreme Court as having total jurisdiction over the case, declaring that the child was habitually resident in Canada and asking for the father’s custody rights to be restricted.
The father argued that the child was wrongfully retained at the moment the mother filled the NFC, demonstrating the point at which she had no intention of returning to New Zealand. He also argued that the child was wrongfully removed as his consent to her removal was under false pretences. The mother denied wrongful removal or retention, arguing that by the time she filed the NFC the child was habitually resident in Canada and that the father had consented and subsequently acquiesced to the retention. She also argued that he could not assert wrongful retention prior to an agreed upon return date.
The court held that the child had been wrongfully retained in Canada and ordered her return to New Zealand.
After applying an objective test the court found that an agreement was made between the parties to return the child to New Zealand in July 2020.
The Court came to no firm conclusion as to whether the father’s consent was invalidated as it was based on false assurances as to the return date.
However, the Court found the retention to be wrongful and held that wrongful retention can occur before an agreed-upon return date. Therefore, that anticipatory retention can constitute a wrongful retention. Whether this has occurred wass a question of fact. To decide otherwise and require the left-behind parent to wait until the "plane lands without the child", would be obviously inconsistent with the purpose and objects of the Hague Convention. In this case the filling of the NFC represented the mother’s intent to remain in Canada with the child.
The Court did not find that the father had consented to the removal or retention. The fact that he remained in Canada to be with the child (rather than returning to New Zealand without her), did not amount to subsequent acquiescence. Furthermore, his approval of the child’s registration at kindergarten was motivated by his wish to alleviate suffering and not prove his tactic consent that she would remain in Canada.
Author: Matheus Ferreira Gois Fontes and Victoria Stephens