A Canadian mother must send her two children back to Germany to live with their father, who is also a Canadian citizen, Ontario’s Court of Appeal ruled last week. However, the father has to provide both the children and his ex-wife with suitable housing once they are in Germany.
In its ruling, the court wrote, “Although this case involves the interests and needs of these two young children, it raises legal issues that transcend their interests and that affect the interests of countless other children and their parents.”
The appeal hinged on the interpretation of rules known as the Hague Convention that deal with international abductions of children. The complex case involved the two Canadian parents who wed in 2000 in Toronto but moved to Germany in 2001. Their children were subsequently born over in Germany in 2002 and 2005. Both hold Canadian citizenship like their parents, yet they spent the majority of their young lives in Germany.
All was well until the couple split up five years ago. The father sought and was granted interim custody, but back in April of 2013, both parents agreed the mother could return to Canada so the kids could attend school there. Their father signed a letter granting his former wife temporary custody of both children.
When they moved back to North America, they kept the majority of their things in Germany, and the following year, their dad attempted to get them back over in Europe. His former wife refused to comply. Eventually, the case landed in Superior Court in St. Catharines, Ont. The justice there issued a ruling that the “children’s habitual residence was in Germany,” which was not negated by the time they spent in Canada. They were under a court order to return to Germany.
Another appeal at the Divisional Court reversed the decision after determining that their usual home was different when their mother refused to permit their return to Germany. The court ruled that the Hague Convention was not applicable.
But this ruling forces them to go back, and finds their mother in violation of the Hague Convention. She plans to continue her fight to the Canadian Supreme Court, calling the Hague Convention “a means of legislated kidnapping.”
Source: CBC News, “Court orders 2 Canadian children to move to Germany with father,” Colin Perkel, The Canadian Press, Sep. 13, 2016