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Case Name
Singh v. Kaur, 2022 MBQB 46
INCADAT reference
HC/E/CA 1563
Court
CANADA - MANITOBA
Court of Queen’s Bench of Manitoba (Family Division)
First Instance
MacPHAIL J.
States involved
ITALY
CANADA - MANITOBA
Decision
8 March 2022
Final
Non-Convention Issues
Return ordered
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Kovacs v. Kovacs, 2002 CanLII 49485 (ON SC), 59 OR (3d) 671; Toiber v. Toiber, 2006 CanLII 9407 (ONCA), 208 O.A.C. 391; A.M.R.I. v. K.E.R., 2011 ONCA 417 (CanLII); M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII); Office of the Children’s Lawyer v. Balev, 2018 SCC 16 (CanLII), [2018] 1 S.C.R. 398
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SUMMARY
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Facts
The mother and father were each born in India. They married in India in 2010 and moved to Italy in 2011. They are now Italian citizens.
In August 2013 they had a son who was born in Italy and is an Italian citizen. The child lived in Italy his entire life until the mother brought him to Canada in September 2021.
The mother argued that the father was well aware of, and agreed with, the plans to travel to Canada. The father denied this and contended he was unaware of the mother had left.
In October 2021 the father made an application under the 1980 Hague Convention for the return of the child to Italy.
In February 2022 the mother submitted applications for refugee protection for her and the child.
Ruling
Return ordered. The Court denied the mother’s requests for a stay and/or an adjournment of the return application proceedings on the basis of her applications for refugee protection.
Grounds
Non-Convention Issues
To allow a parent’s refugee application for their child to stay Hague Abduction Convention applications for the return of wrongfully removed or retained children, would “drive a coach and four” through the Convention and gravely endanger achievement of those important objectives noted by the Supreme Court of Canada. It would significantly delay consideration of requests for return involving non-Canadian children. Even if the parent’s refugee application was unsuccessful, considerable time would pass before that determination was made. A haven would be created for parental child abductors. It would also provide an unfair advantage to parties entering Canada with non-Canadian children as a refugee claim cannot be made for Canadian children.