Saturday, January 31, 2009

Brazil's Compliance with the Hague Abduction Convention is Questioned

Karen Mazurkewich, Financial Post Published: Saturday, December 27, 2008

Francois Larivee is fighting for the return of his five-year-old son from Brazil. But being on the right side of the law is cold comfort to the 38-year-old businessman. He has won two court decisions in Brazil, and has followed The Hague Convention on the Civil Aspects of International Child Abduction to the letter of the law, but Mr. Larivee's custody battle, which has stretched over four years, shows no signs of being resolved.

"It's a nightmare," says Mr. Larivee, who works in finance in Montreal and has seen his son only three times since his former partner kidnapped his son and moved back to Rio de Janeiro. "Every day you wake up you think of this," he adds. Every time I call, it takes me days to recover it's so traumatic, says Mr. Larivee. "It's sad because [my son] always asks: 'Daddy, why are you not here with me?' "

Cross-border custody battles are on the rise in Canada. With more people working and travelling around the globe, there is an explosion in divorces that have an international dimension, says Jeremy Morley, who runs an international family law office in New York. "The world is getting smaller and there is mixing of different backgrounds," he adds. But with the growth of bicultural marriage comes cross-border divorce.

Money and alimony is one thing, but as Mr. Larivee discovered, the worst part of separating from a spouse who no longer wants to live in the same country as you is the tragic problem of custody.

In 2001, Mr. Larivee started dating Ione, a Brazilian woman who had been working five years as an architect in Montreal. Two years later, after learning she was pregnant, the couple bought a house and moved in together. But their relationship turned "tense" following the birth of their son. In January, 2004, she travelled to Brazil for an extended 12-week trip. But when she returned to Montreal two months later, their relationship fell apart.

By August, Mr. Larivee had moved out, arranging visits with his young son three to four times a week. Before they even had a chance to explore custody arrangements, his ex-partner, on the ruse of taking a short trip to the U. S., fled illegally to Brazil with their son. Mr. Larivee learned of her deception only when he showed up at their former home after a long weekend and found his son's belongings were missing.

Mr. Larivee called the police, but his attempts to have his son returned to Montreal -- even for a basic custody hearing -- have been thwarted. "At the time, I thought it would take a month or two to bring him back," he says. I never wanted it to be public, but now I think there is nothing to do but to turn to the media, he adds.

Parental abductions are on the rise globally. The U.S. has the highest reported number of incidents in the world with 169 applications filed in 2003 -- according to the most recent statistics compiled by The Hague Abduction Convention. This represents a 13% rise since 1999. The U. S. also received 286 applications to have children returned to another country, representing a 23% rise during the same period. By contrast, Canada received 56 requests from another country seeking to have a child returned and has made 43 applications to have a child returned from another country, representing a 3% rise in cases over that four year period. The Hague convention on child abduction was drafted in 1980 to deal with the issue of parental kidnappings in cases in which the parent has rightful custody and the child in question has been taken out of the country where she/he has been residing. Since the convention was created, 74 countries have become signatories.

Under the rules of the convention, the child must be returned to their country of residence within six weeks. The convention does not decide child access. Its goal is to ensure that the courts where the child was living will have the right to make that decision.

Mr. Larivee's ex-partner, Ione, had been granted a custody judgment by a family court in Rio de Janeiro, claiming the father had abandoned them. Ms. Harnois had to fight to have the case extracted from family court and heard at the federal court level. By March, 2007 -- almost 2½ years after their first filing -- the federal court ruled that the child should be returned to Canada. The child could not leave until any appeals were heard. By October, 2007, the Federal court of appeal threw out Ione's arguments and demanded that the child be returned to Canada. Mr. Larivee's heart lifted as he flew to Rio to pick up his son. It was supposed to be a stealth operation, but when the court officers arrived to take custody of his son, Ione had taken the boy and fled once again. Her lawyer, however, sat parked in front of the house and informed the officers that the door was open. According to Ms. Harnois, Ione's father, who was also at home, told the officers: "Francois is a good guy, but my daughter is a lioness and she'll fight until the end; you'll never have that child."

Two days later, Ione obtained a decision from the vice-president of the federal court of appeal suspending the decision to have the child removed to Canada. Not only did she get another reprieve, she's working on two more appeals -- one with the Supreme Court of Justice in Brasilia and the second at the Federal Supreme Court in Rio. She's seeking to have the previous judgments overturned. The revolving doors of Brazil's justice system have not stopped turning. Mr. Larivee's case, while unusual, is not the only one pending in Brazil. David Goldman, a father from New Jersey, has also been fighting Brazilian courts for the return of his son, Sean. In June, 2004, Mr. Goldman's wife, Bruna Bianchi Carneiro Ribeiro, travelled to Brazil on vacation with their son. The day they arrived, she called back home and informed her husband she was not returning. He has never been permitted to see his son, and a panel of five judges at the Superior Court in Brazil awarded custody to Bruna in a three-to-two decision.

The Goldman case has made media headlines in the U. S., and he's gone on talk shows such as Dr. Phil to present his story. Mr. Goldman did not get the same positive court outcomes in Brazil that Mr. Larivee has had to date, but he was certain he would finally get custody of his son after learning his ex-wife, who had remarried in Brazil, had died in childbirth in August, 2008. But the case has since taken an ugly twist. In September, Mr. Goldman learned that his wife's widower, Joao Paulo Lins e Silva, ironically a family lawyer in Brazil, had filed to get Mr. Goldman's name taken off his son Sean's birth certificate and have it replaced with his own so the child could remain with him in Brazil. Mr. Silva was awarded temporary guardianship. "He's from an influential family and they are using their power and connections to make it more difficult [for me]," says Mr. Goldman who argues that his case is a basic violation of human rights. "It seems this far in Brazil, possession is nine-tenths of the law," he adds.

Mr. Larivee is holding out hope that his son will one day be returned. He's burned through $150,000, and still there is no end in sight. Brazil's record on judgments on The Hague cases has been spotty. In addition to the Goldman case, a return to Israel was refused, a return to Norway was partly granted--for summer periods only -- and the outcome of another request from the U. S. remains indeterminate.

Mr. Larivee has been learning Portuguese to better communicate with his growing son who's not been taught English or French, although his ex-partner is fluent in both languages. Although he hasn't seen his son much over the years, Mr. Larivee is inspired by the affection the little boy apparently holds for him.

When it comes to love and custody, the Brazilian courts are not playing fair. Mr. Larivee is worried that even if he does eventually win his case, the court won't send the child back to Canada on the grounds that too much time has passed and it would not be humanitarian to remove him from the country he's grown up in. Mr. Larivee is haunted by his ordeal, yet he only shrugs when asked if there was anything he would do differently. "I've done everything I could do, everything right," he says. "Maybe, don't marry a Brazilian."