“The father contends that the application judge was right to apply the Hague Convention framework. He points to various lower court decisions in support of his argument that the principles governing applications under the Hague Convention and s.40 of the CLRA are entirely interchangeable: See e.g. Bolla v. Swart, 2017 ONSC 1488, at para. 38; Moussa v. Sundhu, 2018 ONCJ 284, 11 R.F.L. (8th) 497, at para. 32.
I do not accept the proposition that a s. 40 CLRA application is indistinguishable from a Hague Convention application.
Recall the wording of s. 40 of the CLRA that is relevant to this appeal:
Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; …
may do any one or more of the following …. [Emphasis added.]
The available remedies are: (1) making interim custody or access orders in the best interests of the child; (2) staying the application on conditions, including that a similar proceeding be promptly commenced in another jurisdiction; and (3) ordering the return of the child “to such place as the court considers appropriate”.
Recall, also, that under the Hague Convention, the court must determine the child’s habitual residence immediately before the alleged wrongful removal or retention and, then, unless a specified exception applies, order the child’s return to the state of the habitual residence.
Accordingly, a plain reading of s. 40 of the CLRA and of the relevant Articles under the Hague Convention reveal two fundamental differences between the two types of return applications:
(1) The determination of wrongful removal or retention is not tied to the concept of “habitual residence” under s. 40 of the CLRA. In fact, s. 40 contains no reference at all to the term “habitual residence”.
(2) If the court is satisfied that a child “has been wrongfully removed to or is being wrongfully retained in Ontario” under s. 40 of the CLRA, unlike under the Hague Convention, the court is given broad powers to make orders, including staying the application on conditions. This is in direct contrast to the Hague Convention which provides that, once there has been a determination of wrongful removal, subject to specified exceptions, the child must be returned to the state in which he or she was habitually resident.
While considerations taken into account under Hague Convention and s. 40 CLRA applications will often overlap, it is important not to lose sight of the fundamental differences between the applications. The court’s ability to exercise a broader range of powers under s. 40 is particularly important.
There is good reason to distinguish between a return application under the Hague Convention and under s. 40 of the CLRA.
In relation to Hague Convention matters, it is widely recognized that, between contracting states, the country of habitual residence is the most appropriate location to determine custody and access issues. Accordingly, the purpose of the Hague Convention is to ensure that, between signatories to the Convention, there is “the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. The return order is not a custody determination, but an order designed to “restore the status quo” existing before the wrongful removal or retention and “to deprive the ‘wrongful’ parent of any advantage that might otherwise be gained by the abduction”: Balev, at para. 24.
The fact that a state is a signatory to the Hague Convention provides comfort about how custody and access matters will be dealt with by that state. By becoming a signatory to the Hague Convention, states agree to follow the reciprocal obligations as set out in the Convention. By virtue of signing the Hague Convention, signatories warrant that they are:
[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody. [Emphasis added.]
Given the paramountcy of the child’s best interests in custody and access decisions under the CLRA, the warranty that Hague Convention signatories also treat the best interests of children as of supreme importance is critical.
When considering whether to return a child to a non-signatory state, there is no basis to assume that the receiving state will determine custody and access issues based on the child’s best interests. As noted by Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 61, “[s]ome non-signatory countries may do so; others may not.” By way of example, in this very case, there is a significant dispute between the parents as to whether, in the U.A.E., considerations other than the child’s best interests might prevail.”