“Rule 37.2 of the Family Law Rules applies to international child abduction cases. This rule came into force in October 2022.
Rule 37.2(2) states:
For the purposes of subrules 2 (2) and (4), dealing with an international child abduction case justly includes applying these rules with a view to providing the timeliest and most efficient disposition of the case that is consistent with the principles of natural justice and fairness to the parties and every child involved in the case.
Subrule 2(2)-2(4) of the Family Law Rules addresses the primary objectives of the Rules, lists ways to deal with cases justly, and sets out the Court’s duty to promote the primary objectives.
Rule 37.2(3) requires international child abduction cases to be disposed of promptly, and if Article 11 of the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague Convention”) applies, no later than six weeks after the case is commenced.
The Court noted in O.M. v. S.K., 2020 ONSC 3611, at paras. 12-13:
The granting or refusing of an adjournment is a discretionary act. As summarized by Perell J. in Ariston Realty Corp. v. Elcarim Inc., 2007 CanLII 13360 (ON SC) at para. 34, depending on the circumstances of each case, to judicially exercise the discretion to grant or refuse an adjournment, a judge may need to weigh a number of relevant factors. These factors include:
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- the overall objective of a determination of the matter on its substantive merits;
- the principles of natural justice;
- the need for justice not only to be done but appear to be done;
- the circumstances of the request for an adjournment and the reasons and justification for the request;
- the practical consequences of an adjournment on both substantive and procedural justice;
- the competing interests of the parties in advancing or delaying the progress of the litigation;
- any prejudice not compensable in costs suffered by a party by the granting or the refusing of the adjournment;
- whether the ability of the party requesting the adjournment to fully prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
- the need of the administration of justice to process proceedings in an orderly fashion; and
- the need of the administration of justice to effectively enforce court orders.
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When dealing with an adjournment request in family proceedings, the best interests of the child should be added to the list of relevant factors.
In Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, (2009) 96 O.R. (3d) 138, at para. 37, the Court of Appeal for Ontario provided the following non-exhaustive list of considerations for deciding whether to grant an adjournment:
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A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases. Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant’s reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered.
In a case involving the Hague Convention, Leigh v. Rubio, 2022 ONCA 582, the Court of Appeal addressed the requirement to act expeditiously in the conduct of an application and hearing, stating at para. 20:
Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues.”