“Section 23 (of the Children’s Law Reform Act) sets out a serious harm exception to the limits on Ontario’s jurisdiction to make custody and access orders established by ss. 22 (jurisdiction) and 41 (enforcement of extra-provincial orders):
Serious harm to child
23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains in the custody of the person legally entitled to custody of the child,
(ii) the child is returned to the custody of the person legally entitled to custody of the child, or
(iii) the child is removed from Ontario.
This court has determined that the serious harm analysis under the CLRA is less stringent than the “intolerable situation” test under the Hague Convention. Laskin J.A. came to this conclusion in Ojeikere, at paras. 59-61 because of the different wording used in the CLRA and also:
… because under the preamble to the Convention all signatories accept and are “firmly convinced that the interests of children are of paramount importance in matters related to their custody”. Signatories have accepted this principle and its enforcement by their agreement to adhere to their reciprocal obligations under the Convention. In Hague Convention cases Ontario courts can have confidence that whatever jurisdiction decides on a child’s custody it will do so on the basis of the child’s best interests. Ontario courts cannot always have the same confidence in s. 23 cases … Some non-signatory countries may do so; others may not.
In Ojeikere, Laskin J.A. took a holistic approach to the determination of serious harm and concluded that, based on a combination of factors, the children were at risk. He considered: (i) the risk of physical harm; (ii) the risk of psychological harm; (iii) the views of the children; and (iv) the mother’s claim that she would not return to the habitual residence even if the children were required to do so.
Here, the application judge determined that Ontario could not exercise jurisdiction to make custody and access orders because she was not satisfied on a balance of probabilities that the children would suffer serious harm if returned to Kuwait. In coming to this conclusion, she discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence. She made this assessment in the face of uncontradicted evidence from three separate OCL experts that the children’s views were in fact independent. She did not explain why this expert evidence should be rejected. This was an error.
The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests – which is engaged in all child-related matters – must incorporate the child’s view.”