20 June 2013
Residencia habitual - art. 3 | Aceptación posterior - art. 13(1)(a)
Apelación desestimada, restitución ordenada
Parties married in Israel, 1995. In 2002, the family moved to Canada. A son was born in Israel in 1997 and in 2005 twins were born in Canada. The parties divorced in Canada in July 2011. In August, 2011 the Court in British Columbia issued a judgment granting the request of the mother to relocate with the parties’ three children to Israel. The father filed an appeal in Canada. His request to stay the execution of the order was denied. The mother affirmed to the court that she would abide by the ruling of the appellate court.
In order to remain close to the children, the father moved with the mother to Israel in August of 2011. The parties continued to litigate in Israel regarding the custody arrangements of the children. The father himself initiated a custody proceeding in the Jerusalem Family Court. In April, 2012, while the Israeli proceedings were still pending, the Court of Appeals in Canada reversed the trial court’s judgment and denied the petition to relocate to Israel.
The father promptly filed a petition for return under the Hague Convention. The mother’s arguments of consent and acquiescence were rejected by the Jerusalem Family Court which accepted the father’s claim that his actions were not voluntary as the Canadian court had imposed the removal upon him. The Appellate Court rejected the mother’s appeal.
The mother filed leave to appeal with the Israeli Supreme Court. After leave was granted, the father surreptitiously obtained the passports of the children and returned with them to Canada in violation of the Israeli courts’ order.
The Supreme Court rejected the mother’s appeal.
The court found that the habitual residence of the children remained in Canada. The move to Israel was temporary pending the outcome of the appeal in Canada and therefore under Article 3 the childrens’ habitual residence remained in Canada while the appeal was under consideration. When the appellate court in British Columbia overturned the relocation judgment, the retention of the children in Israel became unlawful.
The court held that habitual residence should focus on the facts of each case as seen from the perspective of the child. Parental intent should be considered as one of the relevant facts but not as the primary point of departure.
The Supreme Court considered the impact of the father absconding with the children prior to the conclusion of its proceedings. While strongly condemning the father’s actions, it held that ultimately his willful disregard of the court’s order did not undermine the court’s ability to determine the ultimate issue; namely that the habitual residence of the children remained in Canada.
Although the father had relocated to Israel with the mother and children after the lower court judgment in Canada, the court held that the father had evidenced his opposition to the move by filing an appeal. His options at that time were to either remain in Canada without the children or relocate with them in order to continue his role as father, while waiting for the Canadian Appellate Court decision.
The fact that he also participated in custody proceedings in the Jerusalem Family Court, and even initiated an action there, were found to be reasonable actions under the circumstances. The court found that the father’s actions were imposed on him due to the circumstances and did not constitute a decision made by choice nor amount to acquiescence under Article 13.