“As I have said, under s. 23 of CLRA, an Ontario court can exercise jurisdiction over the custody of a child and refuse to order the child’s return to the child’s habitual residence where satisfied that the return would, on a balance of probabilities, cause “serious harm”. Case law on the meaning of “serious harm” relies on a similar, though not identical provision in The Hague Convention. Under art. 13(b) of the Convention, an Ontario court would not be bound to order the return of the child if the person opposing the return establishes that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Despite the difference in language, in their interpretation, courts appear largely to have equated the standard of “serious harm” in s. 23 of the CLRA with the standard of “grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation” in art. 13(b) of the Convention.
The leading Supreme Court of Canada case on the meaning of “grave risk of harm” and “serious harm”, decided nearly a quarter of a century ago, is still Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] 3 S.C.R. 551. Thomson was a Manitoba case decided under the Convention. But La Forest J., who wrote the majority reasons, also considered s. 5 of the Manitoba statute, which, like s. 23 of Ontario CLRA, used the standard of “serious harm” without mentioning an “intolerable situation”. Despite the different language between the two provisions, he held at page 596: “[T]he inconsistencies between the Convention and the Act are not so great as to mandate the application of a significantly different test of harm”.
Justice La Forest then discussed the meaning of “grave risk of harm” under art. 13(b) of the Convention. Relying in part on an English decision, he held that the harm could be physical or psychological, but that the standard is stringent – the harm from the child’s return must be sufficient to amount to “an intolerable situation”:
It has been generally accepted that the Convention mandates a more stringent test than that advanced by the appellant. In brief, although the word “grave” modifies “risk” and not “harm”, this must be read in conjunction with the clause “or otherwise place the child in an intolerable situation”. The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation. …
Nourse L.J., in my view correctly, expressed the approach that should be taken, at p. 372:
…the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another. I agree … that not only must the risk be a weighty one, but that it must be one of substantial, and not trivial, psychological harm. That, as it seems to me, is the effect of the words ‘or otherwise place the child in an intolerable situation’.
I hasten to add, however, that I do not accept Twaddle J.A.’s assessment that the risk contemplated by the Convention must come from a cause related to the return of the child to the other parent and not merely from the removal of the child from his present caregiver. As this Court stated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, from a child centred perspective, harm is harm. If the harm were severe enough to meet the stringent test of the Convention, it would be irrelevant from whence it came. [Emphasis in original.]
Ontario courts typically have used this passage for the meaning of “serious harm” under s. 23 of the CLRA. Undoubtedly, as La Forest J. said, the harm can be physical or psychological or both, and it must be greater than would ordinarily be expected from taking a child from one parent and returning the child to the other parent.
Still, in Thomson, La Forest J. acknowledged that the standard in the Convention and the standard in the legislation (in that case Manitoba’s) are expressed in different terms. He did not discuss the significance of the difference in any detail. Instead, he concluded that “[i]n view of the findings that the facts [in Thomson] did not meet the tests of harm either as expressed in the Convention or the Act, I need not delve into this issue (emphasis added).” The harm alleged in that case was psychological harm upon separation from a parent, and would not have met the requirements of either the statutory or the art. 13(b) standard.
I conclude that the standard of “serious harm” required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.”
Ojeikere v. Ojeikere, 2018 ONCA 372 (CanLII) at 52-58