A Nevada father breathed a sigh of relief after an Ontario Superior Court judge ordered the return of his abducted infant children to the U.S. state, says Toronto family lawyer Meghann Melito.

The case of V. v. O. was heard in Newmarket, several months after the Canadian mother fled with the former couple’s two young children to the Greater Toronto Area from Nevada, where divorce and custody proceedings were already underway.

Justice David Jarvis ordered the children returned to Nevada under the Hague Convention, dismissing in the process the mother’s application for temporary care and control of the youngsters.

“As you can imagine, he was thrilled to get the children back,” says Melito, an associate with MacDonald & Partners LLP, who acted for the successful father along with firm partner Michael Stangarone.

Child Abduction Lawyer

Both have significant experience litigating child abduction matters under the Hague Convention, to which both Canada and the U.S. are signatories.

“He and the children have been put through the ringer, and they continue to incur legal fees both in Canada and the U.S. as a result of the mother’s actions. But from what we hear, they are all doing well,” Melito adds.

Parents whose children are abducted internationally by former partners face a particularly challenging situation, according to Melito. In addition to the emotional turmoil that comes with uncertainty over the children’s location and severed communications, parents are also forced to confront more practical issues. 

“Unless they take action, the left-behind parent risks being labelled as acquiescent to the removal,” Melito says. 

Hague Convention & Ontario Law 

And while the Hague Convention provides a framework for returning children from signatory countries, it’s far from straightforward:

“It’s an intense procedure and immediate steps are required,” Melito explains.

According to Jarvis’ ruling, the two children at the heart of this case – each under three years old – were born in Ontario, but the family departed shortly after each birth to a home in Nevada owned by the father’s relatives.

Following the younger child’s arrival in September 2018, the family lived together in Nevada from October 2018 until April 2019, when the mother launched a child custody application in the U.S., alleging domestic abuse against the father. 

After a failed attempt to limit the father’s access to the children and her eviction from the family residence, the decision says that the mother entered Canada with the children on June 28. The father only found out four days later when the mother emailed her Nevada lawyer, who passed on the news.

In Ontario, the mother launched and later withdrew a custody and child support application, before the father initiated his own request for his children’s return to Nevada, via Melito and Stangarone. 

According to Melito, a thorough review of the Nevada court file paid dividends for her client in Ontario, where 

“When you compared the multiple pleadings in the different jurisdictions, they gave completely different accounts,” she says. “There’s no more effective way to impugn a person’s credibility than by using their own words.”

Indeed, Jarvis noted that the mother’s competing representations were “impossible to reconcile,” citing numerous examples of the mother’s lack of credibility in his decision.

After reviewing the evidence, Jarvis rejected the mother’s claim that the children had been resident in Ontario since January 2018, concluding that they were habitually resident in Nevada before she “wrongfully removed them from the United States to Canada” without the father’s consent. 

In addition, he found none of the exceptions to the Hague Convention applied in this case, and ordered the children be returned to Nevada. 

"Time is of the Essence"

Melito says “strong and decisive case management” is crucial in Hague Convention matters, since time is of the essence.

“We benefited from Justice Jarvis’ ability to preside over each attendance and his decisions were comprehensive,” she says. “It makes a big difference when the judge knows the parties and is able to easily recall previous discussions.” 

The children eventually returned to Nevada without their mother in late 2019 following an elaborate protocol designed to ensure her compliance. 

Melito says the procedure was complicated by the fact the children’s passports had, at one stage, been reported stolen by the mother. In addition, the father had moved to have their travel documents flagged in a passport lookout program in case the mother attempted to flee again.

“We had to obtain new passports for them and there were some extra security measures at the point of departure, but it all worked out in the end thankfully,” Melito says.