“The mother’s substantive ground of appeal is that Ferguson J. should have given effect to Article 13(b) of the Hague Convention and refused to enforce the Georgia court’s order.
Article 13(b) of the Hague Convention, upon which the mother relies, does not directly apply to the proceedings. Article 13(b) provides:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
…
b) 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.
As can be seen, Article 13(b) constitutes an exception to the obligation of a requested state to order the return of the abducted child. In this case, there was no request for the return of the child under the Hague Convention. The father’s motion was to enforce the order of the Georgia court under s. 41 of the Children’s Law Reform Act. He did not invoke the Hague Convention. The Supreme Court of Canada in Thomson v. Thomson, 1994 CanLII 26 (SCC), [1994] S.C.J. No. 6 at para. 93 made it clear that domestic legislation and the Hague Convention operate independently of one another.
In any event, the mother can rely on s. 43 of the Children’s Law Reform Act. Section 43 provides:
43. Upon application, a court by order may supersede an extra-provincial order in respect of custody of or access to a child if the court is satisfied that the child would, on the balance of probability, suffer serious harm if,
(a) the child remains in the custody of the person legally entitled to custody of the child;
(b) the child is returned to the custody of the person entitled to custody of the child; or
(c) the child is removed from Ontario.
Decisions of the lower courts are conflicting as to whether the Children’s Law Reform Act applies when the states involved are signatories to the Hague Convention. In my view, the rationale of the Thomson case – that the two regimes operate independently – leads to the conclusion that the mother can invoke s. 43. In any event, as the court stated in Thomson at para. 93, in cases involving domestic legislation “it may not be improper to look at the Convention in determining the attitude that should be taken by the courts” and at para. 79, that “the inconsistencies between the Convention and the [Manitoba] Act are not so great as to mandate the application of a significantly different test of harm.” The Manitoba provision before the court in Thompson is in substance much the same as Ontario’s s. 43.”