HC/E/CA 16
CANADA
Supreme Court of Ontario
First Instance
UNITED STATES OF AMERICA
CANADA
1 June 1989
Final
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20
Return ordered
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The Supreme Court of Ontario stated that it possessed the sole responsibility for the interpretation and application of the Convention. It found that the child was habitually resident in the State of California immediately before his removal; that the removal was in breach of the father's rights of custody which were actually exercised at the time; that the father had not consented to the removal; and that the removal was therefore wrongful under Article 3.
There was no direct evidence that the father had ever harmed the child, either physically or psychologically. An inference could not be drawn that the child would be exposed to harm or placed in an intolerable situation on the basis of the mother's allegations that the father had threatened to kill her. The evidence on this point was contradictory and one isolated instance should not be taken out of context. There had never been any expression of any harm to the child, thus the 'notwithstanding' clause required by Article 13 was not established. The request for the trial of the issue was refused as it would entail additional delay and expense.
Under the Canadian Charter of Rights and Freedoms s. 6(1) every citizen of Canada has the right to enter, remain in and leave Canada. While the child possessed dual citizenship, as a Canadian citizen he did not have the right to remain in Canada in defiance of the Hague Convention. The refusal to order a trial on an issue of whether return would expose the child to harm was not a denial of the fundamental justice provided for in s. 7 of the Charter.
The Convention has been found to be in accordance with national constitutions or charters of rights in other Contracting States, see:
Argentina
W. v. O., 14 June 1995, Argentine Supreme Court of Justice, [INCADAT cite: HC/E/AR 362];
Belgium
N° 03/3585/A, Tribunal de première instance de Bruxelles, [INCADAT cite: HC/E/BE 547];
Canada - Canadian Charter of Rights and Freedoms
Parsons v. Styger, (1989) 67 OR (2d) 1, [INCADAT cite: HC/E/CA 16];
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.), [INCADAT cite: HC/E/CA/369];
Czech Republic
III. ÚS 440/2000 DAOUD / DAOUD, 7 December 2000, Ústavní soud České republiky (Constitutional Court of the Czech Republic);[INCADAT cite: HC/E/CZ 468];
Germany
2 BvR 982/95 and 2 BvR 983/95, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 310];
2 BvR 1126/97, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 338];
Ireland
C.K. v. C.K. [1993] ILRM 534, [INCADAT cite: HC/E/IE 288];
W. v. Ireland and the Attorney General and M.W. [1994] ILRM 126, [INCADAT cite: HC/E/IE 289];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Bundesgericht (Tribunal fédéral), [INCADAT cite: HC/E/CH 427];
5A_479/2007 /frs, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 953];
United States of America
Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (2001) [INCADAT cite: HC/E/US 484];
Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT cite: HC/E/US 971];
Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005) [INCADAT cite: HC/E/US 799].
However, several challenges have been upheld in Spain, see:
Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a, [INCADAT cite: HC/E/ES 244];
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].