“The Convention creates certain exceptions to the mandatory return procedure for children wrongfully removed or retained. Those exceptions, contained in Articles 12, 13 and 20, were intended to be of limited scope. The Convention’s drafters envisaged a “restrictive” interpretation of these exceptions: see Elisa Pérez-Vera, “Explanatory Report” in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at para. 34. Similarly, Chamberland J.A. of the Quebec Court of Appeal in M.G. v. R.F., 2002 CanLII 41087 (QC CA), [2002] J.Q. No. 3568 at para. 30, said:
The Hague Convention is a very efficient tool conceived by the international community to dissuade parents from illegally removing their children from one country to another. However it is also, in my view, a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.
The exception at issue in the case at bar is contained in Article 13(a), which reads:
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced inthe removal or retention. [Emphasis added.]
I make two observations about this provision. First, it places the burden for establishing acquiescence on the person who opposes the child’s return – in this case, the mother. Second, whereas return of the child under Article 12 is mandatory where the court finds wrongful removal or retention, a court’s decision not to return a child because of the aggrieved parent’s acquiescence is a discretionary decision: where Article 13(a) applies, the requested state “is not bound to order the return of the child”.
In Katsigiannis v. Kottick-Katsigiannis (2001), 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), this court performed an in-depth analysis of Article 13(a) and decided to adopt the analysis of acquiescence set out in a House of Lords judgment by Lord Browne-Wilkinson: see In re H and others (Minors) (Abduction: Acquiescence) [1998] A.C. 72 (H.L.). This court’s conclusion was that acquiescence is a question of the aggrieved parent’s subjective intention, not one of the outside world’s perceptions of that intention (para. 48). Subjective intention can be demonstrated through conduct, but such a demonstration requires the abducting parent to show “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence” (para. 49). Moreover, to override the mandatory return mechanism, the acquiescence must be “unequivocal” (para. 49).
In her reasons, the motion judge referred to Katsigiannis and correctly summarized its holding. However, the motion judge went on to refer to the concept of “passive acquiescence,” which she said “occurs when the aggrieved parent allows enough time to pass without insisting on summary return.” She went on to conclude that “[w]aiting and permitting Andrew to become settled in Ontario and to establish roots with his mother and her extended family can only be the result of acquiescence on the part of the father.” [Emphasis added.] The four factual findings at the end of her endorsement follow a similar path of reasoning:
(i) there is clear and cogent evidence of unequivocal acquiescence;
(ii) the father’s conduct is inconsistent with the summary return of Andrew to Florida. He did not take immediate or even relatively immediate steps. He only brought the Hague motion in May of 2007;
(iii) there has been passive acquiescence on the part of the father i.e. enough time has passed without insisting on summary return;
(iv) acquiescence, in this case, can be inferred from the father’s conduct.
With respect, in my view the motion judge misapplied the concept of acquiescence set out in Article 13(a) and explained in Katsigiannis.
The eight-month delay between the mother’s failure to return Andrew on the September 29 return flight and the father’s commencement of Hague Convention proceedings cannot, without more, constitute acquiescence. The Hague Convention, under Article 12, allows aggrieved parents one year following the date of the wrongful removal or retention to apply for their child’s summary return, and to have the Convention’s summary return mechanism apply with its full force. Even after a year has passed, an aggrieved parent’s summary-return rights are not extinguished; the return mechanism is merely softened, with the abducting parent given the chance to override mandatory return upon proof that the child has “become settled in its new environment”: see Article 12. To infer acquiescence solely on the basis of delay where the application was filed within eight months is inconsistent with Article 12. Given Article 12’s one-year window, which is not even a strict limitation period, such delay cannot by itself constitute “clear and cogent evidence” of “conduct . . . which is inconsistent with the summary return of the children to their habitual residence”.
There are good reasons not to deny the aggrieved parent the one-year window provided by Article 12. The parent may initially be unaware of the Hague Convention and of the rights and remedies flowing from it. The parent may, as the father claims here, attempt reconciliation, or to otherwise settle the dispute outside the courtroom. Most importantly, such a broad interpretation of acquiescence is inconsistent with the purpose of the Convention, which is to secure the prompt return of abducted children, and with the correspondingly limited scope of the Convention’s exceptions.”