Article Summary
This article examines how Alberta courts handle international parental child abduction cases under the Hague Convention. In Smallwood v Campbell, 2024 ABKB 426, Justice Bokenfohr ordered full indemnity costs, payable immediately, against a father who wrongfully retained children in Canada instead of returning them to Costa Rica as previously agreed. The case illustrates the serious consequences for violating international agreements on child custody and the protective mechanisms available for returning children to their habitual residence.
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Family
Parenting
Child Support
Featured case: Smallwood v Campbell, 2024 ABKB 426
International Child Abduction and the Hague Convention
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, 2024 ABKB 426, 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.
Case Facts
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.
Mother's Application for Return
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.
Judicial Reasoning and Decision
At the hearing, the Father argued that the children were not habitually resident in Costa Rica and made several prejudicial allegations about the Mother. However, Justice Bokenfohr found that the children were habitually resident in Costa Rica immediately prior to the Father's wrongful retention of them in Canada.
The court determined that the Father had not established any of his claims and granted the Mother's application while denying the Father's cross-application. Taking into account all circumstances of the case, Justice Bokenfohr concluded that a full indemnity costs award was appropriate pursuant to Article 26 of the Hague Convention to: (1) compensate the Mother for her expenses, (2) punish the Father for his conduct, and (3) deter other parents from engaging in similar behavior.
Acknowledging Legitimate Concerns
Despite denying the Father's cross-application, Justice Bokenfohr acknowledged that his concerns regarding the children's well-being were reasonable. However, the court noted that these concerns should have been properly addressed through a parenting application brought in Costa Rica, not by wrongfully retaining the children in Canada.
The court emphasized that the Father's conduct in wrongfully retaining the children necessitated the full indemnity costs award and the requirement for immediate payment.
Implications for International Family Law Cases
This case highlights several important principles regarding international child custody disputes:
The Hague Convention provisions will be strictly enforced by Canadian courts
Habitual residence is a key determination in international custody disputes
Concerns about a child's welfare should be addressed in the jurisdiction of habitual residence
Courts may impose severe cost consequences for violating international agreements
Full indemnity costs can serve both compensatory and deterrent purposes
The Calgary Legal Team has extensive experience in navigating the complex procedural challenges inherent in international child abduction cases. In the case of Kilcommons v Zapata, 2023 ABKB 691, where a child was wrongfully brought to Canada from Mexico by the plaintiff (the child's mother), we successfully advocated on behalf of the defendant, resulting in the dismissal of the plaintiff's application.
If you find yourself involved in an international child custody dispute or want to discuss your legal options, our experienced lawyers at The Calgary Legal Team can provide the guidance you need to navigate these complex matters.
