Meghann Melito & Michael Stangarone | Feb 2022

A recent case highlights the importance of supporting evidence in abduction and wrongful retention applications launched under the Hague Convention, says Toronto family lawyer Meghann Melito.

In G. v. R., the mother of a three-year-old sought to have her daughter returned to Costa Rica, accusing the Canadian father of wrongfully retaining the girl following a trip to Manitoba in the spring of 2020. The mother claimed that the visit was only supposed to last 30 days, blaming the Covid-19 pandemic for the extension of the girl’s stay before she finally filed her request for return in September 2021.

Both Canada and Costa Rica are signatories to the Hague Convention, but Justice Gwen Hatch of the Manitoba Court of Queen’s Bench dismissed the mother’s application, finding that the parents jointly intended to relocate their child to the province, and that she had been habitually resident with her father in Rorketon, Man., since moving to live with him.

“The mother took some liberties with the facts, and there was no evidence to back up what she said about the trip being temporary,” says Melito, a partner with MacDonald & Partners LLP, who acted for the successful father along with partner, Michael Stangarone.

“It was pretty clear from her correspondence that she wanted the family to live in Canada because she thought it was a better place for them all. However, the determination of a child’s habitual residence is not conditional or dependent on reconciliation of the family unit,” Melito adds.

According to the ruling, the couple first met in Costa Rica in 2016 while the father was on vacation in the off-season for his construction job, and entered a relationship soon after. When the child was born in October 2018, she became a dual citizen of Costa Rica and Canada, and the parents decided that the whole family should relocate to Canada, with the father sponsoring the mother and her two older children for permanent residence.

In the meantime, the father continued travelling between the countries, working in Canada during his busy season and living with the mother and child for months at a time in the winter.

The decision says that the relocation plan went into action in March 2020 when the father took his daughter to Manitoba and made a visitor visa application for the mother to stay with them for 11 weeks, during which time they intended to file the sponsorship application.

However, things quickly went off the rails when the mother’s visitor visa was denied and she had to remain in Costa Rica. Although she did apply for permanent residence in June 2020, she did not make it to Canada before the pair separated in the summer of 2021, ahead of the mother’s Hague Convention application for the return of her child.

Melito says the mother’s case was not strong based on the evidence and weakened further by her attempt to assert two alternative dates – April 2020 and September 2021 – for wrongful retention of the child by the father.

Because the first date – triggered by the child’s move to Canada – came more than 12 months before the mother’s application, it opened up a possible defence under Article 12 of the Hague Convention, which allows a wrongfully retained child to remain with the parent if they have become settled in their new environment.

In the end, Justice Hatch came down comprehensively in favour of the father, concluding that the Hague Convention did not apply on either date because the child was habitually resident in Canada.

Even if she had decided that the child remained habitually resident in Costa Rica in April 2020, the judge concluded that she should stay in Canada anyway, noting the girl’s close bonds with her local relatives and neighbourhood friends, as well as her disconnection from the country of her birth.

“In my view, it would be traumatic for the child to have her life disrupted and to require her to live in a country that she no longer has familiarity with, whether that relates to language, food, environment or physical location,” wrote Justice Hatch, the associate chief justice of her court’s family division.

Had the Convention applied on either alleged date of wrongful retention, the judge said she would have invoked the exception in Article 13 that allows a child to stay where they are when the parent seeking return consented to the child’s removal.

“In my view, the mother’s own communications and ongoing participation in the sponsorship process along with her delay, constitute consent to and/or acquiescence in the child remaining in Manitoba,” Justice Hatch concluded.

"You can’t just change your mind, which is what seems to have happened in this case,” Melito says.

Although she has significant experience litigating child abduction matters under the Hague Convention in Ontario, the case provided Melito with her first exposure to the procedure in Manitoba, where provincial government lawyers handled the case on behalf of the mother.

“In Ontario, private counsel are retained and paid for by the parties, so it was pretty interesting to work opposite Crown lawyers,” she says.