Court of Appeal for Ontario
UNITED STATES OF AMERICA
16 January 2008
Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)
Appeal allowed, return ordered
The Court recalled that in Katsigiannis v. Kottick-Katsigiannis it had been established that to assert Art. 13(1)(a) there had to be evidence of a subjective intention to acquiesce in the wrongful retention, on the part of the applicant parent. This intention could be demonstrated through conduct, but such a demonstration would require the abducting parent to show clear and cogent evidence, which was unequivocally inconsistent with a summary return.
An inference of acquiescence on the basis of delay where the application had been filed within eight months was deemed to be inconsistent with the terms of Article 12. There were good reasons not to deny the one-year window to bring an application for return: the parent may not be aware of the 1980 Hague Child Abduction Convention; the parent may, as was asserted by the father, have made attempts at reconciliation; most importantly, such a broad view of acquiescence was inconsistent with the purpose of the Convention, which was to secure the prompt return of abducted children, and with the correspondingly limited scope of the Convention's exceptions.
The father's procedural conduct was not inconsistent with summary return. Consenting to a jurisdictional hearing in Ontario did not show a weakened resolve on the part of the father to seek his son's return, but in fact showed his desire for such a return.
The Court dismissed the trial court's finding on settlement given that the return application had been filed within the one year time limit.