Mother waits as father criminally probed for failing to return child to Canada

TORONTO — Canadian police are investigating a mother’s complaint that her former spouse has failed to obey a court order to return their four-year-old son to Canada.

The investigation into Oscar Maillard marks a stark turnaround in a complex legal saga that previously saw his ex-spouse of 10 years, Elizabeth (Liz) De Swart, jailed briefly for her own failure to take the couple’s Calgary-born son back to Spain.

Det. David Keagan, who heads up international child-abduction cases for the Calgary police, said Maillard’s failure to abide by the order from Alberta’s top court was under active investigation by his service, the RCMP, Global Affairs and foreign partner agencies.

“I can confirm that, yes, we are investigating a criminal complaint of child abduction,” Keagan told The Canadian Press. “We’ve attempted to speak with the suspect to see what the issue is — if there’s a lack of understanding or just an outright refusal to comply.”

The see-saw battle between Maillard and De Swart underlines the legally and emotionally fraught difficulties of child-custody disputes that cross international borders.

De Swart, 38, says she decided to flee an increasingly abusive relationship and return with their son to Calgary from Europe, where they had moved in November 2018. Maillard, 35, has denied any abuse. He says the family left Canada to pursue a shared dream of living abroad and that De Swart spirited their son away while he was at work in Africa.

Maillard, who was working as a health and safety officer in Chad, turned to the Alberta courts under the Hague Convention on international child abductions, which relies on determining a child’s “habitual residence” in deciding which country the minor should be in.

Although the boy had spent almost his entire life in Calgary, a Court of Queen’s Bench justice sided with Maillard on July 2, 2019. Justice Barbara Romaine ruled the child was habitually resident in Spain — a country he had lived in for less than two months. The judge would not grant a stay of her order pending an appeal, De Swart says, and gave her just four days to take him to Alicante, Spain. Romaine issued a Canada-wide arrest warrant for De Swart on July 10.

In her first media interview since then, De Swart said it was “absolutely shattering” that the judicial system initially failed her so badly.

“Did (Romaine) really think I was going to let my son go? Nobody wants to be separated from their child,” De Swart said, choking back tears. “He needs his mom. I just feel he was taken away from me for no reason.”

Instead of obeying the order, De Swart headed to The Netherlands, where she has relatives, in hopes Dutch authorities would intervene in her favour. They refused. After police knocked on her grandmother’s door, De Swart turned her son over to his father on July 24, 2019, in the southern city of Breda, and came back to Canada.

On her arrival, Calgary police arrested De Swart under a warrant Romaine had issued for failing to comply with the court order. She was released the following day, but the civil contempt case against her is ongoing.

“I felt criminalized,” says De Swart, who does management consulting. “Never in my life did I ever expect to be in this situation.”

In December, the Alberta Court of Appeal set aside Romaine’s orders. It found the “connections that this child has known in his young life are primarily in Alberta.” The appellate court ordered Maillard to return the boy to Canada. Maillard has not complied.

For the moment, police have listed the Calgary-born child as a missing person in Canada, Keagan said.

De Swart has had a few Skype chats with her son since she left him in The Netherlands. Now, she says, she no longer gets any response from her ex and does not know where they are.

“I’m just trying to get through each day and hopefully have (my son) come back to me,” De Swart said.

Neither Maillard, who was last known to be in Spain, nor his appellate lawyer responded to a request for comment.

This report by The Canadian Press was first published Feb. 9, 2020.

Colin Perkel, The Canadian Press