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The mother and father never married but lived together for 8 years. The mother has four children, born in 2002, 2009, 2011 and 2014. The father is the biological father of the three youngest. While not biologically related to the eldest child, the father testified that he stood in the place of the child’s father for 8 years and that he formally had the biological father’s name removed from the child’s birth certificate and replaced with his own name. 

Until September 29, 2016, the parents and four children lived together on the Fort Berthold Reservation, North Dakota. The father and three youngest children are members of the Fort Berthold Reservation while the mother and the eldest child are not. 

On September 29, 2016, the mother left the family home and brought the four children to Punnichy, Saskatchewan. The mother and children later moved to Saskatoon, Saskatchewan.

The father brought applications to the Fort Berthold Tribal District Court, which issued, between October and February 2016, multiple “chasing orders” giving custody of the children to the father. 

The father filed an application for the return of the four children under the 1980 Hague Child Abduction Convention in the Court of Queen’s Bench for Saskatchewan on May 12, 2017. In the course of these proceedings, the parties made the following admissions: the children’s place of habitual residence was North Dakota and, if the father had custody rights in respect of each of the children, he was exercising them at the time of their removal. 

Return of the three youngest children ordered. Their removal was wrongful. 

Rights of Custody - Art. 3

The Court recalled that the law of the place of habitual residence determines whether a parent had rights of custody at the time of removal. The Court also noted that the North Dakota Century Code governs the custody of children in North Dakota and that the Three Affiliated Tribes have promulgated laws dealing with child custody in their Code of Laws of the Three Affiliated Tribes.

The Court observed that Canadian courts have taken different approaches to the determination of the existence of custody rights: self-directed analysis of applicable legislation, reliance on opinions of legal experts and reliance on court decisions in jurisdiction of habitual residence. The Court then explained that, in the current case, none of these approaches provided a clear response to the question of whether the father had custody rights at the time of removal.

In the absence of proved law, the judge considered whether to seek an opinion from North Dakota authorities, in accordance with art. 15 of the Convention, but decided not to do so because it would result in delay. 

The judge thereafter applied the private international law rule that if foreign law is not proved, it is assumed the same as lex fori unless proven otherwise. In Saskatchewan, the governing legislation is The Children’s Law Act and there is, under common law, a presumption that one parent cannot move children to another jurisdiction without the agreement of the other parent or a court order. 

The judge concluded that the father had custody rights under Saskatchewan law in respect to his three biological children. 

Undertakings

Having recalled that its duty is to order the return of the children “forthwith”, the Court added that, as long as it did not contradict the spirit and intent of the Convention, it could take into consideration the consequences that might flow from the return and the best interest of the child in designing its return order.

The Court ordered that the children return to North Dakota by July 1, 2017, therefore allowing them to complete the last two weeks of their school term in Canada. 

The Court also required that the father provide an undertaking not to enforce the North Dakota post-removal custody orders until after July 14, 2017. The purpose of this undertaking was to allow the mother to bring a custody application to a court in North Dakota and avoid that the children be forcibly removed from her by the police upon their arrival in the State. 

Author: Emmanuelle Jacques