CASE

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Case Name

Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008

INCADAT reference

HC/E/CA 1028

Court

Country

CANADA

Name

Ontario Superior Court of Justice

Level

First Instance

Judge(s)
O'Connor J.

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

CANADA

Decision

Date

21 November 2008

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Order

Return ordered

HC article(s) Considered

3 12 13(1)(a) 13(1)(b) 13(2) 27

HC article(s) Relied Upon

13(2)

Other provisions

-

Authorities | Cases referred to
A. (J.E.) v. M. (C.L.), 2002 NSCA 127, [2002] 33 R.F.L. (5th) 1; Re R. (A Minor) (Abduction), [1992] 1 F.L.R. 105 (Eng. C.A.); Thomson v. Thomson (1994), 119 D.L.R. (4th) 253 (S.C.C.).

INCADAT comment

Exceptions to Return

Child's Objection
Nature and Strength of Objection

SUMMARY

Summary available in EN

Facts

The child, a boy, was 11 years old at the time of the alleged wrongful removal. Prior to the removal the parents had been divorced for some time and both were living in Indiana, United States of America. The parents shared joint custody of their son, whose primary residence was with the mother.

In August 2007 the mother, a Canadian citizen, applied to the Indiana Superior Court for an order allowing her to relocate to Canada with her son. On 30 April 2008 this application was denied. On 15 May 2008 the mother came to Ontario to renew her driver's license, bringing her son with her.

On 23 May while returning to the United States, she encountered problems at the border because of her criminal record and the fact that she was not an American citizen. However, she was granted a 7-day humanitarian pardon to re-enter the United States.

On 30 May 2008 the father obtained an order that restrained the mother from taking their son to Canada prior to obtaining proof that she could legally re-enter the United States. On 24 June 2008 the mother brought her son to Ontario in violation of this order. On 27 June 2008 the mother was deported from the United States.

The father then brought an application under the 1980 Hague Child Abduction Convention for the child's return.

Ruling

Return ordered.

Grounds

Removal and Retention - Arts 3 and 12

-

Objections of the Child to a Return - Art. 13(2)

A note written by the child's pediatrician prior to the child's removal to Canada explained that the child, described as a "very smart and very intelligent" boy of almost 11, had expressed an interest to reside with his mother, even were she forced to move to Canada.

The child was found by the court to have a maturity that was "at least age appropriate... perhaps slightly more mature than his chronological age would suggest". As such, he met the criteria in Art. 13(2) of the Convention that he had attained an age and degree of maturity at which it is appropriate to take account of his views.

The court next considered whether or not the child objected to returning to his place of habitual residence. It was found that while the child had a stated preference to remain with his mother, a preference fell short of an objection. To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence.

He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

Procedural Matters

The mother argued that she would be prejudiced in the custody proceedings occurring in Indiana due to her inability to enter the United States. The court found that Indiana was the appropriate jurisdiction for custody proceedings. The mother's prior criminal convictions were for minor offences and occurred long in the past. Her own lack of initiative in seeking a pardon for them contributed to her inability to enter the United States.

INCADAT comment

Nature and Strength of Objection

Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].

The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'.  However, this was subsequently reversed by a legislative amendment, see:

s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.

Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

See for example:

Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].

The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:

Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].

Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].

A mere preference for the State of refuge is not enough to amount to an objection.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].

A mere preference for the State of refuge is not enough to amount to an objection.

Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].

To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.

In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.

These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].

For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.

France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:

CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];

TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].

United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.

In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.

In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto.  She explicitly rejected the Re T. gateway tests.

The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.

More recently a stricter approach to the objections has been followed, see:  C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].

Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:

5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];

5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].

A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):

5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].

For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in  Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda,  271-310 (Intersentia,  2008).