Father loses legal battle to have children returned to Canada

A father has lost his legal battle in the Supreme Court to have his three children who were born in Canada be returned there. Justice Lorna Shelly-Williams said that because Canada had not acceded to Jamaica as a Contracting State under the Hague Convention she had no jurisdiction to embark on an application for the return of the children.

“I find that the court has no jurisdiction to make any orders relating to the above-mentioned children under the Children’s Act which incorporated the Hague Convention.

“Canada has not acceded to Jamaica becoming a member of the Hague Convention and as such the orders being sought for the return of the children under the Children’s Act cannot be granted,” Justice Shelly-Williams ruled this month.

In her written decision, the judge detailed further:

“There was one other issue raised that is; whether the Central Authority must be engaged with regards to the return of wrongfully retained children. The usual method by which such requests are made for the return of these children is through the Central Authority. Article 7 of the Hague Convention refers specifically to Central Authority and the role they play in these proceedings,” the judge said.

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Article 7 states: Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

NO MUTUAL RECOGNITION

On April, 25, 2023, the Superior Court of Justice, Family Court in Ottawa, Ontario, Canada made an order for the defendant mother to return the children to Ottawa by no later than May 19, 2023 but the children have not been returned.

The children’s parents who were married, separated in 2023 and subsequent to the separation, the mother took the children to Jamaica.

On March 14, the father filed a claim in the Supreme Court under the Hague Convention for the return of the children. The children’s mother was named as the defendant. The claim was amended in April and the claimant sought orders for the children to be returned forthwith to Canada.

A preliminary point was raised as to whether Canada, “ is a Contracting State with Jamaica within the provisions of the Children ( Guardianship and Custody Amendment) Act. (The Children’s Act).”

Attorney-at-law Jamai Charles, instructed by Myers Fletcher and Gordon who represented the claimant, acknowledged that there was no mutual recognition in respect of the Hague Convention between the parties. He, however, submitted that Canada is still a Contracting State according to the Children’s Act.

Attorney-at-law Rhoden James, who represented the defendant, submitted that the prerequisites for the claim to be filed under the Children’s Act had not been satisfied. She also emphasised that Canada was not a Contracting State with Jamaica and the case could not be deemed as one under the Hague Convention. Rhoden was instructed by Stewart-Harrisingh Williams and Rhoden.

The Office of the Children’s Advocate was an interested party in the claim.

Nicole Chambers, attorney-at-law for the Child Protection and Family Services Agency and attorney-at-law Shamsi Green for the Children’s Advocate made similar submissions that Canada and Jamaica were not Contracting States.