“Section 46 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 implements the Hague Convention as the law of Ontario.
Article 1 of the Convention states that its objects are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.
Once a wrongful removal of a child from the Contracting State in which the child was habitually resident has been established, Article 12 of the Convention requires that “the return of the child forthwith” be ordered.
The order is to be made expeditiously. Article 11 provides that “the judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.” The Article goes on to give the applicant and the Central Authority the right to request a statement of the reasons for delay if a decision has not been reached within six weeks from the date of the commencement of the proceedings.
Article 16 provides that the court in the State to which the child has been taken “shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention”. Thus, as LaForest J. put it in Thomson, “an application for return pursuant to the Convention pre-empts a local custody application”. Or as this court explained at greater length in Katsigiannis v. Kottick-Katsigiannis, 2001 CanLII 24075 (ON CA), [2001] O.J. No. 1598:
[A] Hague Convention application does not engage the best interests of the child test – the test that is universally and consistently applied in custody and access cases. Hague Convention contracting states accept that the Courts of other contracting states will properly take the best interests of the children into account. See Medhurst v. Markle (1995), 1995 CanLII 9273 (ON SC), 26 O.R. (3d) 178 (Gen. Div.) and Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226 (Ont. C.A.). Thus, where there has been a wrongful removal or retention, and no affirmative defence is established within the meaning of the Hague Convention…the children must be returned to their habitual residence.
The philosophy of the Hague Convention is that it is in the best interest of children that the courts of their habitual residence decide the merits of any custody issue. Adhering to this philosophy ultimately discourages child abduction, renders forum shopping ineffective, and provides children with the greatest possible stability in the instance of a family breakdown.”