“The question of when a judge should hear oral evidence when deciding an application under the Hague Convention has not been the subject of extensive judicial discussion in Canada. Typical is the statement of Little J. at para. 25 of In Mahler v. Mahler (1999), 1999 CanLII 14255 (MB QB), 3 R.F.L. (5th) 428 that “The Hague Convention procedures are summary ones and except in the most unusual of circumstances are based on affidavit evidence.”
It is worth noting that in Thomson, the application judge was asked but refused to order a trial on the issue of harm. The Supreme Court of Canada noted this fact in its description of the proceedings below but said no more about it.
In this court, in Cornfeld v. Cornfeld, [2001] O.J. No. 5773 (C.A.) the application judge refused to order a psychological assessment of the children requested by the mother to support the Article 13(b) exception. Charron J.A. in refusing to stay the order of return found that “the applications judge was justified in finding that the matter could, and should, be decided on the basis of the existing record.”
The jurisprudence of other jurisdictions is instructive. Lord Justice Thorpe of the Court of Appeal (Civil Division) of England and Wales succinctly stated what I consider the proper approach in Re W (a Child). At para. 23 he said:
The experience and the instinct of the trial judge is always to protect the child and to pursue the welfare of the child. That instinct and experience sometimes is challenged by the international obligation to apply strict boundaries in the determination of an application for summary return. The authorities do restrain the judges from admitting oral evidence except in exceptional cases. The authorities do restrain the judges from making too ready judgments upon written statements that set out conflicting accounts of adult relationships. What the authorities do not do is to inhibit the judge from himself or herself requiring oral evidence in a case where the judge conceives that oral evidence might be determinative. The judge’s conduct of the proceedings is not to be restricted by tactical or strategic decisions taken by the parties. However, to warrant oral exploration of written evidence, the judge must be satisfied that there is a realistic possibility that oral evidence will establish an Article 13(b) case that is only embryonic on the written material.”