Mother moves with son to Ontario, informs father by text message after the fact
The Court of Appeal for Ontario has directed the return of a three-year-old boy to his habitual residence in Texas, U.S. under the Convention of the Civil Aspects of International Child Abduction (Hague Convention).
The appellant father in this case was a U.S. citizen residing in Balch Springs, Texas. The respondent mother was a Canadian citizen living in Toronto. The parties met online in 2019 and married in Ontario in February 2020. They then returned to their respective countries and paid each other visits.
The parties’ son, who had dual Canadian and American citizenship, was born in March 2021 in Toronto. By this time, the couple had decided to settle together in Texas, where the father worked as a biomedical equipment technician. The mother and the child moved to Texas in July 2021. She took steps to enable her to work in Texas.
The parties’ marriage soon deteriorated. In June 2023, the mother took the son to Toronto without notifying the father. She then messaged him regarding her return to Ontario and her plan to live there with the child. Sometime in November 2023, the father applied for the return of the son under art. 12 of the Hague Convention.
An application judge of the Ontario Superior Court of Justice dismissed the father’s request for the child’s return. She ruled that the father had acquiesced under art. 13(a) of the Hague Convention to the son’s relocation. She noted that the father had not explicitly demanded the son’s return in writing. This unfavourable decision prompted the father to appeal.
In Thomas v. Thomas, 2024 ONCA 646, the Ontario Court of Appeal allowed the appeal and awarded the father costs of $10,000 for the appeal and $15,000 for the lower court proceedings.
The appeal court concluded that the application judge’s decision did not meet the objective of the Hague Convention, which was to secure the prompt return of children wrongfully removed from their habitual residence.
The appeal court identified the principles applicable to acquiescence under the Hague Convention. Acquiescence should be unequivocal, should be established with clear and cogent evidence, and should be based on the actual subjective intention of the parent objecting to the removal. The burden of proof lay with the parent who removed the child from the habitual residence.
The appeal court ruled that the application judge misapplied these principles. She wrongly shifted the burden to the father to establish that he did not acquiesce to the son’s removal, when the burden lay on the mother to prove his acquiescence, the appeal court explained.
The appeal court took issue with the application judge’s emphasis on a text message where the father told the mother to come home. While the judge placed the blame on the father for not mentioning the child, the appeal court interpreted the message as implying that the son would accompany the mother’s return, given that he was only three years old.
The appeal court stressed that the application judge failed to properly assess the father’s subjective intention regarding the child’s relocation. The application judge overlooked evidence of the father’s continued communications with both the mother and the son and the interest that he showed in the child’s life, including through a visit to Toronto, the court said.
