“Article 13(b) [of the Hague Convention on the Civil Aspects of International Child Abduction] creates an exception to the general rule that a child wrongfully removed or retained in a contracting state should be returned to his country of habitual residence. The provision sets a high threshold of a “grave risk” of physical or psychological harm or otherwise placing the child in an “intolerable situation”.
This interpretation is only reinforced when examining the text in its context and in light of the treaty’s object and purpose. As stated by Chamberland J.A. in F. (R.) v. G. (M.), 2002 CanLII 41087 (QC CA), [2002] J.Q. no 3568, [2002] R.D.F. 785 (C.A.), at para. 30:
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 . . . a fragile tool and any interpretation short of a rigorous one of the few exceptions inserted in the Convention would rapidly compromise its efficacy.
This court in Jabbaz v. Mouammar, 2003 CanLII 37565 (ON CA), [2003] O.J. No. 1616, 226 D.L.R. (4th) 494 (C.A.) agreed with those comments and went on to add further comment, which is of particular relevance to this appeal. At para. 33, Rosenberg J.A., writing for this court, observed:
Refusing to enforce the Convention because the child might have to move a short time later is not consistent with the rigorous interpretation required and is inconsistent with the stated objects of the Convention to secure the prompt return of children wrongfully removed or retained from the Contracting State and to ensure that custody rights are respected. Such an interpretation is, in my view, inconsistent with the thrust of the cases in this province such as this court’s decisions inPollastro and Finizio. Continuity in residence is desirable but some instability is not intolerable.
The threshold with respect to the exceptions set out in the Convention is thus a high one. The Supreme Court of Canada in Thomson held, at para. 28, that the risk to the child must be one of substantial psychological harm to the child. In Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226, [1999] O.J. No. 3579 (C.A.), relying on Thomson, MacPherson J.A., writing for the court, found that the father had on one occasion struck the mother, but held that this was not a sufficient reason to refuse his application to have the children returned to Italy. This conclusion was based in part on the assertion that it should be left to the police and courts of Italy to minimize any harmful effects of returning the children there: Finizio, at paras. 33-35, citing C. v. C. (minor: abduction: rights of custody abroad), [1989] 1 W.L.R. 654, [1989] 2 All E.R. 465 (C.A.).
In contrast, in Pollastro v. Pollastro (1999), 1999 CanLII 19933 (ON CA), 43 O.R. (3d) 485, [1999] O.J. No. 911 (C.A.), this court found that a continued pattern of escalating emotional and physical abuse, combined with threats against the mother and her family, were sufficient to create an intolerable situation for the child. I would note that the court’s conclusions in that case were based on evidence from the mother’s doctor as well as transcripts of a taped phone message.”
Ellis v. Wentzell-Ellis, 2010 ONCA 347 (CanLII) at 37-41