The recent decision of Bhadauria v. Côté demonstrates how the Court is unlikely to approve or support any parent’s strategic abduction of a child.
In Bhadauria v. Côté, a mother abducted her 16-month-old child and moved to France without informing the father or obtaining the court’s consent. It was her claim that she did this out of fear. The mother made allegations of domestic violence against the father and claimed that it was due to this violence that she decided at the last minute to abduct her child. Now, the mother was seeking an order from the Court confirming that the child could stay in France despite this abduction.
The governing legislation involving this matter is the Ontario Children’s Law Reform Act, which dictates that the mother was obligated to notify the father in writing about her intent to move the child to France. The Court has the ability to waive this requirement but a threshold for a test must first be met.
According to Justice Shelston, the test for determining whether the court will waive the requirement of notification is as follows: “The mother did not have the right to remove the child from Ottawa and move to France because she did not have the consent of the father, or a court order permitting such a move. However, if the mother can prove, on the balance of probabilities, that it was appropriate for her to move based on certain factors including the existence of family violence against the mother and or child, the court may permit such a move.”
In this case, the Court found that the burden of proof had not been met. Justice Shelston held: “I do not find it was appropriate for the mother to fail to give the father any notice of her decision to take their child to France then moving the child to France. The mother appears to have determined that she will be the custodial parent of the child and that the father will have parenting time. That is not the mother’s decision. Either the parties will reach a consent or the Superior Court of Justice will make that decision. Consequently, the child must return to Ottawa, Ontario. I am granting the mother a delay in returning the child, however, if she fails to return the child as ordered, I have directed the police to enforce this order.”
Although you may be frustrated with the judicial system, it is important to seek legal advice prior to taking matters into your own hands. Child abduction should not be the answer and legal professionals can assist you in going about the proper channels to ensure the safety of your children in situations of domestic violence.
At Swiderski Law, we are able to help and can provide comprehensive advice regarding parenting time, decision making responsibility and child support.