Court File and Parties
Court File No.: FC-25-18
Date: 2025-02-21
Ontario Superior Court of Justice
Between:
Kadejah Moore (Applicant)
and
Mehmed Mujic (Respondent)
Appearances:
- Zainab Ettu, Counsel for the Applicant
- Mehmed Mujic, Self-Represented
Heard: February 21, 2025
Judge: M.R. Gibson
Ruling on Civil Aspects of International Child Abduction
Overview
[1] The Applicant mother, Kadejah Moore (“the Applicant”), commenced this Application on January 21, 2025, seeking a declaratory order that the children, Keschawna-Mae Amela-Jana Moore-Mujic (born 26 October 2013) and Reniyah Natalie-Marie Moore-Mujic (born 19 February 2015) (“the children”), have been wrongfully removed from Canada and retained by the Respondent father, Mehmed Mujic (“the Respondent”), in Darda, Croatia, since 5 August 2024.
[2] The Applicant requests relief pursuant to Articles 3 and 15 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). She also requests relief pursuant to sections 40 and 46(5) of the Children’s Law Reform Act (“CLRA”) and Articles 7, 8, and 12 of the Hague Convention.
Background
[3] The children were both born in Canada and lived in Cambridge, Ontario until the Respondent took them to Croatia on 5 August 2024 while the Applicant was visiting her family in Jamaica. The children had never previously been to Croatia. The Applicant and the Respondent have had a volatile and troubled relationship and have been separated since 2015.
[4] The Applicant has had limited opportunity to speak with the children since the Respondent took them to Croatia. On 6 January 2025, the Respondent informed the Applicant that he had no plans to return the children to Canada.
[5] The Applicant advises that she commenced a Hague Application on 17 January 2025. The matter is now with the Central Authority in Croatia for review.
[6] The Applicant seeks a Chasing Order. On 31 January 2025, a First Meeting was held before Piccoli J. in respect of the Applicant’s claim pursuant to Rule 37.2 of the Family Law Rules.
[7] The Respondent attended that meeting by Zoom. He confirmed his correct email address with the Court on that date. In her Endorsement dated 31 January 2025, Piccoli J. directed that there would be a hearing (peremptory) on 21 February 2025. She directed that the Respondent was to serve and file responding material on or before 11 February 2025, and that both parties were to serve and file a statement of law on or before 14 February 2025. She encouraged the Respondent to seek legal advice. Justice Piccoli directed that all materials were to be uploaded to Case Center by 14 February 2025. At the First Meeting on 31 January, the Respondent indicated that the children were staying with him in Darda, Croatia. Justice Piccoli noted in her Endorsement that the Respondent had been able to understand and answer the Court’s questions in English during that attendance. Notwithstanding this, a Croatian language interpreter was arranged for the hearing to be held on 21 February, and was present waiting to serve in that capacity today.
[8] The Respondent has not served and filed any responding materials or statement of law, nor uploaded any to Case Center.
[9] The Respondent did not appear at the appointed time on 21 February 2025. I adjourned the matter briefly and requested the Registrar to send an email to the email address previously confirmed by the Respondent as his correct email address. No response was received. Counsel for the Applicant also confirmed that the Respondent had not responded to her previous email communication with him.
[10] After waiting a reasonable interval to give him an opportunity to appear or communicate with the Court, which he did not, I concluded that the Respondent does not intend to participate in this hearing. I am satisfied that the Respondent had notice of today’s hearing, yet he failed to attend by Zoom or to file any responding materials. I therefore proceeded with the hearing.
[11] I have reviewed the Affidavit evidence provided by the Applicant, which I accept, and heard submissions from her counsel.
Legal Framework
[12] The legal framework governing this type of application was comprehensively set out by A. Himel J. in Mar v. Wu, 2023 ONSC 281. I agree with and adopt Justice Himel’s statement of the law at paras. 10-11, 13-17, and 24-27 in that case:
The Hague Convention
[10] The Hague Convention is implemented in Ontario by s. 46(2) of the Children’s Law Reform Act. The Convention seeks to secure the prompt return of children wrongfully removed or retained in a Contracting state to the state of their habitual residence. It attempts to ensure that rights of custody and access of one Contracting state are respected in the other Contracting states (Article 1). The Convention presumes that the interests of children who have been wrongfully removed are better served by immediately repatriating them to their original jurisdiction where the merits of custody should and, but for the abduction, would have been determined. The return order is not a custody determination (Article 19). It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction.
[11] The strong policy of the Convention in favour of ordering the immediate return of children is intended to deter the abduction of children by depriving fugitive parents of any possibility of having their custody of the children recognized in the country of refuge and thereby legitimizing the situation for which they are responsible. The foundation of the Convention is the rapidity of the mandatory return process and the principle that the merits of issues related to the custody of children who have been wrongfully removed or retained are to be determined by the courts of their habitual place of residence.
Jurisdiction to Make a Chasing Order
[13] With respect to the Ontario Court’s jurisdiction to make a chasing order, the mother relies on Articles 14 and 15 of the Convention, which provide that:
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
[14] The mother also relies on the decision of Thomson v. Thomson, whereby the Supreme Court of Canada defined a chasing order as an order “made solely to bolster an application under the Hague Convention.” The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful.
[15] In her article, The Application of the Convention - From the Practitioner’s Perspective on the Hague Convention, Phyllis Brodkin, provides the following list of reasons for obtaining a chasing order:
a. A chasing order gives an unequivocal message to the judge hearing the Hague Application in the requested state. Counsel in the requested state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the requested state for such a declaration;
b. A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child's return. On the other hand, it will delay the return if counsel is forced to obtain such an order as a condition precedent to the return, after the application has been heard;
c. Seeking a chasing order in the requesting state creates a proceeding in which to obtain custody when the child is returned; and
d. A chasing order enables the parent seeking the child’s return to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction.
[16] I agree with the mother’s interpretation of the Convention, the caselaw and Ms. Brodkin’s sage comments.
[17] The Ontario Court has the necessary jurisdiction and is, in fact, obliged to assist Mexico to facilitate a resolution of the Hague Convention Application, and to ensure that a wrongfully retained child is returned to Ontario as quickly as possible.
Wrongful Retention and Habitual Residence
[24] Article 3 of the Hague Convention states that a removal or retention is wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
[25] There are two steps in the determination of habitual residence. The first is to establish the date of the wrongful removal or retention, and the second is to determine where the children were habitually resident immediately before the removal or retention date.
[26] In Office of the Children’s Lawyer v. Balev, 2018 SCC 16, the Supreme Court adopted the ‘hybrid approach’ to determining a child’s habitual residence. On the hybrid approach, the application judge determines the focal point of the child’s life – “the family and social environment in which its life has developed” – immediately prior to the removal or retention: Pérez-Vera, at p. 428. A child’s habitual residence accordingly “corresponds to the place which reflects some degree of integration by the child in a social and family environment” and must be established “taking account of all the circumstances of fact specific to each individual case.” Considerations include the duration, regularity, conditions and reasons for the child’s stay in the Member State. No single factor dominates the analysis. The hybrid approach is “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.” Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of”: O.L. v. P.Q. (2017) C-111/17, (C.J.E.U.), at paras. 43-45.
[27] The hybrid approach best fulfills the goals of prompt return under the Convention: (1) deterring parents from abducting the child in an attempt to establish links with a country that may award them custody, (2) encouraging the speedy adjudication of custody or access disputes in the forum of the child’s habitual residence, and (3) protecting the child from the harmful effects of wrongful removal or retention.
Findings
[13] The children were removed from Ontario on 5 August 2024. The mother did not consent to their removal or any extension of their time in Croatia.
[14] The children’s habitual residence is unquestionably in Ontario. They were born in Ontario and had resided in Ontario with the Applicant for their entire life. They had never resided in Croatia. The focal point of their lives before the wrongful removal was in Ontario – their home, school, doctor, dentist, activities, friends, mother and much of their family are all in Ontario.
[15] I declare that the children were wrongfully removed and have been wrongfully retained in Croatia since 5 August 2024. The appropriate remedy is an order for the children’s immediate return to their habitual residence in Ontario.
Letters Rogatory
[16] The Applicant’s counsel indicated in her oral submissions that she seeks letters rogatory to effect service upon the father in Croatia in a manner that will be recognized by the Croatian Court. This requested relief was not included in the Application, nor were any details provided. Neither was any draft Letter provided.
[17] Letters rogatory are requests from a judge to the judiciary of a foreign country for the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country’s sovereignty.
[18] Letters rogatory are used when the court in one country requests assistance from the court in another country for various purposes including effecting service and obtaining evidence.
[19] An Ontario court is entitled, at its discretion, to give effect to a request for letters rogatory if the purpose of this request could be achieved by the issuance of letters of request in Ontario.
[20] Insufficient details have been provided by the Applicant’s counsel to give effect to this request at this time. If the Applicant wishes to pursue it, then she may submit a 14B motion in writing to my attention, including a draft of the Letter Rogatory sought and details regarding to whom she wishes it to be sent.
Order
[21]
It is declared that the children Keschwana-Mae Amela-Jana Moore-Mujic, born 26 October 2013, and Reniyah Natalie-Marie Moore Mujic, born 19 February 2015, are being wrongfully retained in Croatia by the Respondent, Mehmed Mujic, from their place of habitual residence in Cambridge, Ontario, and that such retention constitutes a wrongful retention of the child within the meaning of section 40 of the Children’s Law Reform Act, Article 3 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”) and pursuant to Article 15 of the Convention.
The children shall be returned forthwith to their habitual residence in Cambridge, Ontario, with their mother the Applicant, at 124 Elgin Street South, Unit 86, Cambridge, Ontario, Canada, pursuant to sections 40 and 46(5) of the Children’s Law Reform Act, and Articles 7, 8 and 12 of the Convention.
Costs
[22] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent by email; the Respondent a further 14 days to respond, with a copy to the Applicant; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M.R. Gibson
Date: February 21, 2025