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Case Name
Ibrahim v. Girgis, 2008 ONCA 23
INCADAT reference
HC/E/CA 851
Court
CANADA
Court of Appeal for Ontario
Appellate Court
Macpherson J.A.
States involved
UNITED STATES OF AMERICA
CANADA
Decision
16 January 2008
Final
Acquiescence - Art. 13(1)(a) | Settlement of the Child - Art. 12(2)
Appeal allowed, return ordered
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Thomson v. Thomson, [1994] 3 S.C.R. 551; Elisa Pérez-Vera, "Explanatory Report" in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980); M.G. v. R.F., [2002] J.Q. No. 3568; Katsigiannis v. Kottick-Katsigiannis (2001), 55 O.R. (3d) 456 (C.A.); In re H. and others (Minors) (Abduction: Acquiescence) [1998] A.C. 72 (H.L.).
SUMMARY
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Facts
On 11 June 2006 the mother, with the permission of the father, brought the child to Ontario to visit the mother's ailing grandmother. Instead of returning as agreed on 29 September 2006 the mother and child remained in Ontario. On 25 January 2007 the mother began custody proceedings in Ontario.
The father commenced custody and divorce proceedings in Florida on 20 March 2007. The parties subsequently agreed that the Ontario Superior Court would determine the proper venue for hearing a motion on custody jurisdiction. On 23 May 2007, the day before the jurisdictional motion was set to be heard, the father served the mother with notice of an application for return of the child under the 1980 Hague Child Abduction Convention.
The 1980 Hague Child Abduction Convention application was heard on 7 June 2007 before the Ontario Superior Court. The Court concluded that the father had acquiesced in the wrongful retention of the child and dismissed the application for return of the child.
Ruling
Grounds
Acquiescence - Art. 13(1)(a)
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.
Settlement of the Child - Art. 12(2)
The Court dismissed the trial court's finding on settlement given that the return application had been filed within the one year time limit.