Permission for a mother to bring her son on a temporary visit to a Hague Convention signatory granted in recent decision
By : Philip Epstein
Permitting a Temporary Visit to Sri Lanka
Jeyathas v. Pratheepan, 2015 CarswellOnt 12109 (Ont. C.J.): This case is really about whether a mother should be entitled to take her 15-month-old son to her family’s home in Colombo, Sri Lanka, to attend her brother’s wedding. These cases always turn on their particular facts but it is useful to be reminded from time to time how different judges deal with these vexing problems.
In the particular circumstances of this case, the judge ultimately allowed the visit for one week. The mother was a landed immigrant and had lived in Canada for two years. Her son was a Canadian citizen. She has other family members in the GTA. She has property claims in Canada and has $26,000 in a joint bank account with the husband and, what I think is the most important determining event here, Sri Lanka is a signatory to the Hague Convention.
The father argued that the mother was a flight risk and that her father was wealthy and would support her in Colombo, together with a few other factors. Justice Clay of the Ontario Court of Justice found that the Hague Convention was the significant factor. He rejects the father’s suggestion that the Convention has no meaning. He notes:
Such a defeatist approach would mean that Canadian children would be denied the opportunity to visit with family members throughout the globe simply because other countries cannot be trusted to do what they have agreed to do.
Justice Clay believes that the mother will return with the child. He allows the visit and provides some conditions, including a condition that the mother cannot withdraw any funds from the parties’ joint bank account until she returns with the child.
This was not a case where the mother might have attended the wedding in Sri Lanka without the child because the father could not have overnight access and had not cared for the child for an extended period of time. There is no discussion as to whether the child could stay with other family members while the mother goes off for a short period of time to the wedding. I think that Justice Clay balanced all of the factors here and once he determined that he did not believe the mother to be a flight risk, he fashioned reasonable conditions that would, in his view, ensure her return.
There is often a great temptation to believe that other countries will not vigorously enforce the Hague Convention and that is probably not unjustified. Nevertheless, I think unless one can demonstrate that a country does not respect a treaty that it signed and does not enforce it, the fact that the country is a signatory to the Convention, will be the most significant factor in these kinds of cases.