British Columbia’s Court Of Appeal Upholds Return Of Child To Ireland
The Court of Appeal of British Columbia recently handed down its first case regarding the interpretation of Article 13 of the Hague Convention on the Civil Aspects of Child Abduction to which Canada is a signatory. In the case of Beatty v. Schatz, 2009 BCCA 310, the Court was hearing an appeal on an expedited basis from the father of an 11 year old boy who was ordered to be returned to Ireland to complete the custody determination for the child in Ireland.
The child was habitually resident in Ireland and his father and mother shared joint custody and joint guardianship of him at the time of his removal. The child’s primary residency was also with his mother. The father was granted permission to take the child to Canada on vacation and failed to return to Ireland thereafter.
The mother filed an application in the Supreme Court of British Columbia under the Hague Convention which essentially stipulates that, if a child is habitually resident elsewhere and is being unlawfully retained in the jurisdiction of a signatory country, that country must return the child to his or her country of habitual residence. However, under Article 13 of the Hague Convention, the Court can refuse to return the child if any of the three considerations outlined in Article 13 apply.
In this case, the father was attempting to keep the child in Canada and relying on the wishes of the child consideration in Article 13. The father essentially argued with support of a psychologist report that the 11 year old boy was mature enough to have his wishes be definitive for the courts and his desire to remain in Canada should be respected.
The Court of Appeal upheld the ruling of the Madam Justice Martinson of the Supreme Court and found that she had not erred in ordering the return of the child to Ireland. In so doing the Court of Appeal found that Article 13 of the Hague Convention granted the Court discretion to consider the factors outlined, it did not serve as a mandatory clause. As such, the Court of Appeal agreed with the earlier ruling that, despite the child’s age and expressed wishes to remain in Canada with his father, these wishes were only one of several considerations in determining the best interest of the child – the prevailing consideration in custody cases. As a result, the child was to be retuned to Ireland.