“Section 40 falls within Part III of the CLRA, which deals with decision-making responsibility, parenting time, contact, and guardianship, the first three items being the new statutory labels for what used to be called custody and access. The purposes of Part III are set out in CLRA s. 19 which, to repeat what is set out in para. 42 above, states:
19 The purposes of this Part are,
(a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;
(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
(c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and
(d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child.
Part III legislates with respect to a broad range of issues relating to the making of parenting and contact orders. Some of its provisions address whether an Ontario court can or should exercise jurisdiction to make a parenting or contact order (ss. 22, 23, and 25). Others concern the making, enforcement, and variation of parenting or contact orders, including the statutory requirement only to take into account the best interests of the child when making a parenting or contact order (s. 24). Yet other sections deal with “extra-provincial matters”.
The provisions collected under the heading Decision-Making Responsibility, Parenting Time and Contact — Extra-Provincial Matters (ss. 40 to 46) provide two mechanisms by which to achieve the purposes enunciated in s. 19 – specifically, those of discouraging child abduction and refraining from exercising jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in a place other than Ontario with which the child has a closer connection.
The first mechanism is the incorporation of the provisions of the Hague Convention into the law of Ontario: CLRA, s. 46(2). Under the Hague Convention, where a child has been wrongfully removed from a contracting state and brought to Ontario by one parent, the other parent may apply for the return of the child to the contracting state: CLRA, s. 46(5); Hague Convention arts. 3, 12, 29. Where certain conditions are satisfied and certain exceptions do not apply, Article 12 requires a court to order forthwith the return of a child who has been wrongfully removed or retained.
The second mechanism involves CLRA s. 40 which states:
Interim powers of court
40 Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or
(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,
may do any one or more of the following:
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- Make such interim parenting order or contact order as the court considers is in the best interests of the child.
- Stay the application subject to,
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i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
ii. such other conditions as the court considers appropriate.
3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
Section 40 applies to both domestic and international situations: where a child has been wrongfully removed to Ontario from another jurisdiction in Canada and where a child has been wrongfully removed from a state that is not a contracting party to the Hague Convention and brought to Ontario.
In Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, leave to appeal refused, [2020] S.C.C.A. No. 193, this court observed, at paras. 34 and 69, that a court is able to exercise a broader range of discretionary powers under CLRA s. 40 than under the Hague Convention. CLRA s. 40(3) sets out one such power; it authorizes a court to order a party to return the child to such place as the court considers appropriate if the court is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario. Section 40(3) is the target of the mother’s constitutional challenges in this case.
The different procedures under the Hague Convention and provincial legislation, such as CLRA s. 40, for securing the return of a child wrongfully removed or retained operate independently of each other: Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551, at p. 603; Geliedan, at paras. 30-33. Nevertheless, as a practical matter, where the provisions of provincial legislation such as CLRA s. 40, are engaged, “[it] may not be improper to look at the Convention in determining the attitude that should be taken by the courts, since the legislature’s adoption of the Convention is indicative of the legislature’s judgment that international child custody disputes are best resolved by returning the child to its habitual place of residence: Thomson, p. 603.”