“Canada is a signatory to the Hague Convention on the Civil Aspects of Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”). The Hague Convention is incorporated into Ontario law through s. 46(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). The Hague Convention has two goals: (a) to secure, subject to very limited exceptions, the prompt return of children wrongfully removed from or retained in any contracting state; and (b) to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.
Courts have a duty to resolve applications quickly and efficiently for the return of a child under the Hague Convention. Delay imposes hardship on the child, frustrates appellate review, and breaches our international obligations. To achieve prompt resolution, the court must strictly manage the process, control the evidence and the timelines, and recognize that custody and access orders (now called “parenting orders” under Canadian and Ontario law) are for another day.
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Article 11 of the Hague Convention requires Canada to “act expeditiously in proceedings for the return of children.”
The importance of this principle was definitively stated in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 23:
The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.
Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues: Balev, at paras. 25-27.
Although the application judge referred to Balev, the conduct of the application and hearing did not comply with this directive.
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When, as here, there is a delay, the abducting parent gains an advantage. Not only does the child develop ties to the new jurisdiction, but appellate review is impeded. The child will soon have been in Canada for nearly three years – this is a third of his life. He is now estranged from his father.
The standard of review for Hague Convention decisions was set out by this court in Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, [2013] W.D.F.L. 3318, at para. 5:
An appeal to this court in a Hague Convention [sic] is not a rehearing or a trial de novo review of the evidence, and the application judge’s findings are entitled to considerable deference. They will not be interfered with – notwithstanding the hearing is based on affidavit, not viva voce, evidence – unless they are unreasonable in the sense that they amount to “palpable and overriding error” or “manifest error” or “clear error”.
While the credibility findings are entitled to deference, the process followed here is not in accordance with the court’s obligation under the Convention for prompt resolution. The application judge has responsibility to comply with the timeline requirements in the Convention; see Balev, at paras. 84, 87. The delay not only contravenes the court’s obligation, it precludes meaningful appellate intervention. The delay itself amounts to a manifest or clear error.”