Wentzell-Ellis v. Ellis (2010), 2010 CarswellOnt 4016 (Ont. C.A.)

This case is a decision based on an Application that was brought by the father in this case. The Mother was a Canadian citizen in this case, but she lived in England with her husband and daughter. In 2009 the Mother and the daughter left England for Canada for a vacation. It was later revealed that the mother claimed to have left England because of the father’s alcoholism and abuse. The father brought the Application when the mother did not return to England and argued that the daughter was being wrongfully held in Canada as outlined in the Hague Convention on the Civil Aspects of Child Abduction. The Father’s Application was dismissed as the Court Ordered that the child did not have to be returned to England under the Hague Convention as she was considered to be an habitual resident of Ontario, and that it would be dangerous to return a child to an environment where she would be at risk of harm from the Father.

When determining whether the child should be returned to England, and to the Father, the Court had to take into consideration where the child was habitually resident. When making this determination, a Court typically looks to where the parents are habitually resident. In this case, it was found that the Mother was habitually resident of Ontario and the Father was habitually resident of England. As the parents were not found to be habitually resident of the same country and as child was so young at the time of the decision and as she had lived in Canada and England for roughly equal amounts of time and, the Court looked to the custodial parent of the Child. It was determined that the child had spent the most time with the Mother during her life and as such, the child should be considered to be an habitual resident of Ontario as the Mother was. Interestingly, the Court held that in the event that they were wrong in this determination, the child was habitually resident of both Ontario and England. Because of this determination, the Hague Convention did not apply because the child was in the jurisdiction that she should be living in.

Furthermore, the lower Court held that if they were incorrect about both of the determinations above, they could rely on Article 13(b) of the Hague Convention which states that a Court is not bound to Order the return of a child where it is determined that doing so would put the child in an intolerable situation. The mother claimed to have left England because of the father’s alcoholism and abuse. The lower Court held that if the child was to be returned to England and the Mother returned with her, she would have to receive support from the Father which would be nominal. As such, notwithstanding the abusive conditions of the home environment which would be intolerable, if the mother had to live in government housing with nominal support from the Father, these conditions would also be intolerable.

The Father Appealed this decision and the Ontario Court of Appeal decided to allow the Appeal. It was found that there were no grounds on which the Court should have dismissed the father’s Application and as such, the Judge had erred in “both interpretation and application of the Hague Convention.” In its reasons the Court explained that the lower Court had set the threshold of proof required for determining the habitual residence of the child too high, the Judge completely disregarded the Father’s residence in making their determination. The child was Ordered back to England as the Court of Appeal found that the child was habitually resident in England at time when the wrongful retention began.

This case is important as the Court notes at the end of their decision that although the child was Ordered to be returned to England, they would not be Ordering the child or the mother to be returning to live with the father. Therefore, with their interpretation of the Hague Convention, the Court was simply re-enforcing the fact that children should not be taken outside of the jurisdiction where they are habitually resident without the consent of both parents. The return of the child also placed this matter back in the appropriate jurisdiction of the English Court system to handle this matter and the separation of the parties accordingly.