“When children are wrongfully removed from non‑party states and brought to Ontario or another Canadian province or territory, the Hague Convention does not apply. To address international abductions falling outside the scope of the Hague Convention, Canadian provinces and territories have enacted various statutory regimes (see, e.g., Family Law Act, S.B.C. 2011, c. 25 (British Columbia); Extra-Provincial Enforcement of Custody Orders Act, R.S.A. 2000, c. E‑14 (Alberta); The Children’s Law Act, 2020, S.S. 2020, c. 2 (Saskatchewan); on the application of the Civil Code of Québec to non‑Hague Convention cases, see Droit de la famille — 131294). In Ontario, the relevant rules are found in Part III of the CLRA.
A review of legislation in this area reveals that, in general, Canadian provinces treat child abductions in non‑Hague Convention cases in a manner methodologically comparable to the Convention: first, by declining to decide parental disputes on the merits with respect to children who do not habitually reside in the province or territory, and second, by favouring the return of children to the jurisdiction of their habitual residence. However, these similarities do not mean that an application brought under provincial legislation is treated the same way as one brought subject to the rules of the Hague Convention (Geliedan, at paras. 26-34).
In Thomson, a Hague Convention case, this Court clarified that the legislation governing non‑Hague and Hague Convention disputes “operate independently of one another” (p. 603; see also L.S.I. v. G.P.I., 2011 ONCA 623, 285 O.A.C. 111, at para. 46). As pointed out by Laskin J.A. in Ojeikere, 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”, but they cannot have the same confidence in cases involving non‑party jurisdictions (para. 60; see also Geliedan, at paras. 37-38 and 45). The Ontario legislature makes plain, in s. 19(a) of the CLRA, that the ultimate determination of a parenting order on the merits will be made on the basis of the best interests of the child. To account for the fact that, in the non‑Hague Convention context, Ontario courts do not benefit from the a priori assumption that the best interests of the child principle will be applied to the merits of the custody dispute in the foreign country, judges assessing petitions for return to non‑party jurisdictions must therefore consider the tenor of foreign law, generally through expert evidence adduced by the parties. Nevertheless, in Thomson, La Forest J. explained that it is not improper to look at the Hague Convention for the interpretation of domestic legislation, “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” (p. 603; for the CLRA, see N. Bala, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 C.F.L.Q. 301, at p. 308).
The children in this case have been removed from the UAE, a state which is not a party to the Hague Convention. It follows that this matter should be resolved on the basis of the general provisions of Part III of the CLRA.”