“The Hague Convention is implemented as part of Ontario’s domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are “(1) to treat the interests of children as paramount in matters relating to their custody; (2) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’; and (3) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’”: A.M.R.I., at para. 47, citing the preamble of the Hague Convention.
To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child’s habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests.”
The mandatory return requirement under the Hague Convention is subject to limited exceptions, including, at art. 13(b), where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The governing case on the meaning of grave risk of harm within the Hague Convention is Thomson. In that case, the Supreme Court held that to constitute grave risk, the risk must be weighty and substantial, and must place the child in an intolerable situation: at p. 597. The word “grave” modifies the “risk” and not the “harm”: Thomson, at p. 596. The assessment must be undertaken from a child-centred perspective: Thomson, at p. 597. Stated otherwise, this defence to return will only be met in “situations that an individual child should not be expected to tolerate”: F. v. N., at para. 73, as cited in Osaloni v. Osaloni, 2023 ABCA 116, at para. 12. This is a high threshold: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 37, 40. Consistent with the objectives of the Hague Convention, the threshold does not require that children be “pushed beyond the limits of endurance”: Landman v. Daviau, 2012 ONSC 547, 17 R.F.L. (7th) 332, at para. 103, aff’d Husid v. Daviau, 2012 ONCA 655, 298 O.A.C. 182, leave to appeal refused, [2012] S.C.C.A. No. 485.
The grave risk threshold may be met by the actions or pattern of behaviour of a parent, with or without physical violence against a child. In Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.), this court held that a continued pattern of escalating abuse, combined with threats against the mother and her family were sufficient to create an intolerable situation for the child, where the child had not, himself, been physically abused by the father: see also Husid.”