A recent decision offers crucial guidance on wrongful retention cases under the Hague Convention, says Toronto family lawyer Michael Stangarone.



While many cases decided under the Convention involve parental abduction between signatory countries, the mother in V. v. K. initially consented to her five-year-old daughter’s visit with the girl’s father in Sault Ste. Marie, Ont. 

The mother agreed to a two week visit, but when the father indicated his unwillingness to let her leave, the mother applied for the child’s return to Costa Rica under the Hague Convention. In his March 18 ruling, Ontario Superior Court Justice Michael Varpio sided with the mother.

Habitual Residence and Wrongful Retention

“The judge had to decide where the child’s habitual residence was in the context of a wrongful retention, and I think he delivers an excellent and comprehensive ruling; the analysis is spot on,” says Stangarone, a partner with MacDonald & Partners LLP, who acted for the successful mother along with fellow firm partner Kristy Maurina.

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

“It was also a great decision for our client, who is very relieved at the result,” Stangarone adds.

Complicated Matters Due to Parents' Relationship 

He says matters were complicated in the case by the on-off nature of the parents’ relationship, as well as the back-and-forth nature of the child’s residence, which alternated between Canada and Costa Rica for months at a time over the last three years. 

According to Justice Varpio’s decision, the crucial time periods were a six-month stay the child spent in B.C. between September 2019 and March 2020, followed by a further six months in Costa Rica until September 2020.

During the B.C. visit, the mother was in Canada on a tourist visa, while the father worked a full-time job in the province. The child also attended school and was registered with a local dentist and doctor. After travelling to Costa Rica, the girl again registered with a local doctor and dentist, and began ballet lessons, while the mother also showed evidence that she was to be enrolled in school, before the trip to Sault Ste. Marie in September 2020, when the girl travelled across international borders with her grandmother to stay with her father.

In court, the father argued that the Hague Convention should not even apply to the case, claiming the child’s habitual residence had always been Canada. Alternatively, he used text messages between the parents to argue that they had agreed their daughter should stay with him for at least one year. 

A Question of Habitual Residence

However, after applying the hybrid test laid out in the landmark Supreme Court of Canada ruling Office of the Children’s Lawyer v. Balev, the judge found that the child’s habitual residence was Costa Rica when she left to visit Sault Ste. Marie.

Despite finding the child’s permanent residence was B.C. during her stay there, Justice Varpio concluded that the situation changed when she moved with her mother to Costa Rica in March 2020, based on the length of the stay, her enrollment in school and the father’s lack of action to bring her back to Canada. 

“The critical question is where the child’s habitual residence was at the time immediately preceding the wrongful retention in September 2020, and the judge agreed with us that the focal point of her life was in Costa Rica,” Stangarone explains.

Social Media Evidence and Intent

He says the decision also provides useful guidance on the issue of acquiescence and the use of social media evidence.

“In family law, social media and text communication is the new frontier, because it can help demonstrate the true intentions of the parties,” Stangarone says.

The father in the case attempted to use texts between the parents to suggest that the mother had accepted the child’s stay in Ontario would be longer-term or permanent. For example, in one text, she agreed to let the child finish the school year in Ontario.

However, the judge took notice of other communications between the parties, concluding that the mother’s concessions were in fact part of her negotiations in response to the father’s abusive tactics. 

“This is not acquiescence by the mother since it was clearly made as a result of coercion,” Justice Varpio wrote.

“When you look at all the evidence, you can see that the extensions were the mother’s desperate attempt to secure the return of her child once she knows that the father is intent on keeping her there,” Maurina says.