“On January 26, 2010, the applicant commenced the within application pursuant to the Hague Convention. He claims that the child was wrongfully removed from her place of habitual residence by the respondent in breach of his custody rights, and applies for the return of the child to Latvia, as well as for a declaration that Latvia is the proper jurisdiction to deal with issues of custody and access. The respondent asks the court to refuse to order the child’s return. In the event the application is dismissed, the respondent asks the court to grant her custody of the child under the Children’s Law Reform Act.
In her defence to the application, the respondent invokes Articles 13(b) and 20 of the Hague Convention. Relying on the decision in A.M.R.I. v. K.E.R., she asks that Articles 13(b) and 20 be construed in a manner that takes into account the principle of non-refoulement arising from the child’s status as a refugee.
The principle of non-refoulement arises from Canada’s obligations under international treaties and domestic law, and is codified in section 115(1) of Canada’s Immigration and Refugee Protection Act. In the case of Németh v. Canada (Justice), 2002 NSCA 127 at par. 31, Cromwell, J., describes the principle of non-refoulement:
Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope. (par. 19)
In Németh, this principle is described as “a cornerstone of refugee protection.””