Gare v. El Nashar, 2018 ONSC 477

In Gare v. El Nashar, the court was confronted with 3 different issues, however, the interesting legal issue pertained to an application from a father (the access parent) seeking permission to travel with his children to a country which is not a signatory to the Hague Convention. This is a useful decision in the area of travel and mobility.

Background

This Ontario Superior Court of Justice case dealt with the father’s proposed trip to Egypt to visit his family. The two children, aged 14 and 11, had been to Egypt before. The father was from Egypt; both parties lived there together previously but the mother returned to Ontario after the relationship ended. The father then moved to Ontario to be close to the children. However, the mother opposed the trip to Egypt on this particular occasion because the situation between her and her husband had become very adversarial. She was afraid that he would not return the children to her.

Analysis

The issue before the Court was whether to allow the father to travel with his children to Egypt, a country which is not a signatory to the Hague Convention. The father provided evidence that the children previously travelled with him – with the mother’s consent – for vacations and to visit his family in Egypt and Turkey, another non-Hague Convention country. It was clear that the father had always returned the children. Justice Raikes found that the father was not a flight risk given that he had resided in Canada for 11 years and had a full-time job, a home, and was in a relationship.

Additionally, Justice Raikes felt the mother’s fears were contradictory and unfounded. While the mother expressed concern surrounding travel advisories and civil unrest in Egypt, similar travel advisories had been in effect in the past when she allowed the children to travel with their father. Furthermore, she was against travel to all non-Hague Convention countries, not only those with travel advisories in effect. The father had made a strong case that he was a loving and protective parent who would not endanger his children.

In this case, the Court found that there was no real danger of harm or injury to the children but that there was a clear benefit to the children in having a relationship with the father’s family and learning their culture. It was decided that the father was permitted to travel outside of Canada with the children for up to two weeks each year when the children were not in school, provided he was in compliance with court orders. The travel was not restricted to Hague Convention countries.