ABKB sanctions Father’s actions in parenting dispute with full indemnity costs under Hague Convention
Introduction:
As an international treaty that aims to protect children from international parental child abduction, Canada has been a party to the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”) since its conclusion on October 25, 1980. In the recent case of Smallwood v Campbell, Bokenfohr J ordered full indemnity costs, payable immediately, to a Mother who brought an application under the Hague Convention against a Father found to have wrongfully retained the parties’ children in Canada. This case exemplifies the purpose of the Hague Convention as well as the implementation of its procedural protocols in the legislation of every Canadian province and territory.
Background:
Nathan Campbell (the “Father”) and Laura Smallwood (the “Mother”) married in June 2011, had two children (7 and 9 years old at the time of the hearing). They moved from Ontario to Costa Rica with their children in September 2021, where they registered the children in school in Costa Rica and lived until they separated in July 2022. Following their separation, the parties had executed a written agreement which provided for the children to reside in Costa Rica with the Mother, with the Father in Canada to have parenting time during Christmas and summer holidays.
The parties acted in accordance with the written agreement until January 3, 2024, when the Father advised the Mother that he was not returning the children to her and that he intended to keep them in Alberta. He registered the children in school in Alberta and applied for Alberta health care cards for them.
The Mother brought an application for return pursuant to the International Child Abduction Act, RSA 2000, c I-4 which provides that the Hague Convention applies in Alberta. The Hague Convention also provides that upon ordering the return of a child, judicial or administrative authorities may direct the person who removed the child to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child (Hague Convention, Article 26).
In response to the Mother’s application, the Father brought a cross-application for an Alberta Court of King’s Bench to: (1) ascertain the views and preferences of the children; and (2) determine whether there is a grave risk that returning the children to Costa Rica would expose them to physical or psychological harm or otherwise place the children in an intolerable situation.
Decision:
At the hearing, the Father argued that the children were not habitually resident in Costa Rica, as well as several other prejudicial allegations about the Mother. However, Bokenfohr J found that the children were habitually resident in Costa Rica immediately prior to the Father wrongfully retaining them in Canada. She further found that the Father had not established any of his claims and granted the Mother’s application and denied the Father’s cross-application. Taking into account the circumstances of the case, Bokenfohr J concluded that a full indemnity costs award was appropriate pursuant to Article 26 of the Hague Convention to compensate the Mother for her expenses, to punish the Father, and to deter other parents from engaging in the same conduct.
Conclusion:
Despite her denial of the Father’s cross-application, Bokenfohr J acknowledged that his concerns regarding the children’s well-being were reasonable. However, she notes that these concerns should have been properly addressed through a parenting application brought in Costa Rica, and that his egregious conduct in wrongfully retaining the children in Canada necessitated the full indemnity costs award pursuant to Article 26 as well as the immediacy of cost payment to compensate the Mother for her expenses, to punish the Father, and to deter other parents from engaging in the same conduct.
The Calgary Legal Team has a plethora of experience in navigating the procedural challenges inherent in international child abduction cases. In the case of Kilcommons v Zapata, 2023 ABKB 691, in which a child was wrongly was brought to Canada from Mexico by the Plaintiff, the child’s mother, we advocated on behalf of the Defendant and were successful in getting the Plaintiff’s application dismissed. Should you find yourself in a similar situation and want to discuss your options, the experienced lawyers at The Calgary Legal Team can help.