“The mother is claiming under Article 13(b) [of the Hague Convention] that there is a grave risk that the return of the child to Italy would expose the child to physical or psychological harm or place the child in an intolerable situation.
The Convention sets a high threshold of a “grave risk” of physical or psychological harm or otherwise placing the child in an “intolerable situation”. Any interpretation short of a rigorous one, with few exceptions inserted in the Convention, would rapidly compromise its efficacy: Ellis v. Ellis, 2010 ONCA 347 at par 38-40. An assessment of risk involved not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring. A test for severity was set out by the Court of Appeal in Jabbaz v. Mouamman (2003), 2003 CanLII 37565 (ON CA), 38 R.F.L. (5th) 103, at paragraph 23, as “an extreme situation that is unbearable; a situation too severe to be endured”.
Justice Abella’s decision in Pollastro v. Pollastro, 1999 CanLII 19933 (ON CA), 1999 CarswellOnt 848 (Ont. C.A.) is often referred to in Ontario decisions on the issue of grave risk. In Pollastro, there was ongoing physical violence causing the wife to be “bruised front and back”. The incidents escalated. When she came home from work one day the husband ripped her T-shirt, banged her head against the floor and later locked her in the bathroom (par 9). Two days later, he disabled her car and she was forced to walk to work carrying the baby, frightened because the husband followed her most of the way. She decided to leave him that day but when she returned home to retrieve some clothing her husband started assaulting her and she had to escape through the bedroom window. Her doctor documented the extent of the bruises on her neck, arms, back, shoulders and thighs as well as the child’s agitated state. Her husband continued to harass her as well as some of her former co-workers. He harassed her mother, her father and her cousin, calling incessantly, threatening his wife and her family. He talked about exacting revenge on his wife, and that if he could not have the child no one would. He made death threats and told her she would never see her son again. He acknowledged drug use and was often drunk. There was overwhelming evidence of him threatening to kill or harm his wife and/or the child. The husband could not control his temper and showed ongoing irresponsible, and irrational behaviour. Justice Abella found that the “potential for violence to be overwhelming” (par 36).
Virtually all of the allegations of abuse alleged by the Mother took place prior to the custody order of the Italian Courts, made in May 2017, just a few months prior to the child’s removal from Italy. All of this evidence would and should have been before the court at that time. Both parties were represented by counsel. Further, the parties participated in an assessment by Social Services in Italy, wherein the Mother acknowledged the Father was a good father to the child. Social Services describe a healthy, well adjusted child, caught in an acrimonious divorce of her parents. The Mother acknowledged the Father had a positive role in the child’s life. Ironically, her biggest fear was that the Father would remove the child from Italy. The Court ordered joint custody. There was no evidence before me to suggest that the decision was wrong or was being appealed or that the Court did not have all the allegations before it when determining custody. Their too consider “the best interest of the child”.
But even if I were to accept all of the mother’s allegations of the Father’s abusive behaviour in the case before me, it would not amount to an “extreme situation” and would not meet the Applicant’s onus of proving that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the children in an intolerable situation. In the case before me, the facts do not come close to severity described in Pallastro.
In Friedrich, a U.S. Court of Appeal decision, Justice Boggs relies on Thompson, the Supreme Court of Canada decision when considering Article 13(b) and further states:
A grave risk of harm for the purposes of the Convention can exist only in two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g. return the child to a zone of war, famine or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. (emphasis added)
This interpretation has been endorsed and adopted by the Ontario Superior Court of Justice and affirmed in the Ontario Court of Appeal. The basic presumption of the Convention is that all contracting states are equipped to make, and will make, suitable arrangements for a child’s welfare. That presumption is rebuttable, but the onus is on the Mother to establish an exception to the convention. The Applicant has not rebutted this presumption.”