CASE

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Case Name

Szalas v. Szabo, [1995] O.J. No. 3632 (Gen. Div.)

INCADAT reference

HC/E/CA 767

Court

Country

CANADA

Name

Ontario Court of Justice (General Division)

Level

Appellate Court

Judge(s)
Herold J.

States involved

Requesting State

HUNGARY

Requested State

CANADA

Decision

Date

30 October 1995

Status

Final

Grounds

Removal and Retention - Arts 3 and 12

Order

Return ordered

HC article(s) Considered

3 13(1)(a) 13(1)(b) 13(2) 13(3)

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to

-

SUMMARY

Summary available in EN | FR | ES

Facts

The mother and father, Hungarian nationals, were married in Hungary in 1980. After they separated, the mother, with the consent of the father, took custody of their two children, a girl born in 1981 and a boy born in 1984.

The father later remarried and emigrated to Canada in 1990. The two children visited the father in Canada during their school breaks. In 1993 the boy went to live with the father.

In 1994 while the daughter was visiting, the father applied for custody of the children. The mother brought an application for their return.

The judge at first instance ordered that the daughter be returned. The judge declined to order the return of the son pending an application by the mother in Hungary for a decision that the father's retention of the son in Canada was wrongful.

The father appealed to the Ontario Court of Justice (General Division), and the mother cross-appealed.

Ruling

The father's appeal was dismissed and the daughter's return ordered. The mother's appeal was dismissed and the son's return refused at this time.

Grounds

Removal and Retention - Arts 3 and 12

The mother had consented to the son living with the father temporarily, and she had not demanded the return of the son before bringing the return application. It was not clear whether the father’s retention of the son was wrongful. Before ordering return of the son, the court required that the mother obtain an order from a Hungarian court declaring the father’s retention of the son to be wrongful. Since the son had been in Canada for 2 years and objected to being returned, the court held it should take particular care to ascertain whether the retention violated the mother’s rights of custody under Hungarian law.