“The purpose of a return order under the Hague Convention has been described by the Supreme Court in two cases: Thomson and Balev.
In Thomson, the court stated that the Hague Convention seeks to enforce custody rights and protect children internationally from the harmful effects of their wrongful removal or retention by providing procedures to return children promptly to the situation they were in immediately before their wrongful removal: Thomson, at pp. 578-79. The harm that the Hague Convention seeks to prevent was also summarized in Balev, at para. 23:
The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents.
The harms to a child from a wrongful removal or retention were further described by this court in Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 16: “Child abductions ordinarily harm children, undermine the important goal of maximizing contact between a child and both parents, and often promote a parent’s interests over that of the child”: see also, M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at para. 38, leave to appeal refused, [2020] S.C.C.A. No. 402.
In Balev, the court stated that the prompt return of wrongfully removed or retained children serves three purposes: (i) it protects against the harmful effects of wrongful removal or retention; (ii) it deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody; (iii) finally, it is aimed at speedy adjudication of the merits of a custody or access dispute in the forum of a child’s habitual residence, eliminating disputes about the proper forum for resolution of custody and access issues: at paras. 25-27.
Against this background, the court in Balev went on to describe, at para. 24, the nature of a return order made under the Hague Convention:
The return order is not a custody determination: Article 19. It is simply an order designed to restore the status quo which existed before the wrongful removal or retention, and to deprive the “wrongful” parent of any advantage that might otherwise be gained by the abduction. Its purpose is to return the child to the jurisdiction which is most appropriate for the determination of custody and access.
A return order made under CLRA s. 40(3) shares the same purpose as one made under the Hague Convention. The Preamble of the Hague Convention and CLRA s. 19 display a commonality of purpose. The Preamble expresses the desire “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.” On its part, s. 19 of the CLRA seeks “to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process” and to ensure Ontario courts refrain from exercising jurisdiction where a more appropriate forum exists in which to determine decision-making responsibility.
In M.A.A., this court recognized the commonality of purpose of return orders made under the Hague Convention and CLRA s. 40, stating, at para. 38: “With respect to non-signatory countries, the CLRA applies and reflects the Hague Convention’s goals of discouraging child abductions by confining Ontario jurisdiction over custody to limited circumstances.”
In Kovacs, a Hague Convention case, Ferrier J. noted the common purposes of the return provisions under the Convention and the CLRA, stating, at paras. 140-41, that “in making an order that a child be returned to its habitual residence without a determination of the custody issue, [the court] is making an order considered to be in the best interests of the welfare of the child”, a jurisdiction that clearly is one of provincial power. See also: Bolla v. Swart, 2017 ONSC 1488, 92 R.F.L. (7th) 362, at para. 37, quoted above at para. 57.
This commonality of purpose was also recognized by Professor Nicholas Bala in his article, “O.C.L. v. Balev: Not an ‘Evisceration’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” (2019), 38 Can Fam LQ 301, at p. 308:
Provincial legislation like Ontario’s Children’s Law Reform Act adopts a statutory regime for enforcement of custody rights of parents from non-Hague countries that is based on the same basic principles and concepts as apply when there is a wrongful removal or retention of a child to Ontario from a Hague Convention country. Like the Hague Convention, the CLRA is intended to discourage forum shopping and deter international abduction of children, and to avoid exercise of concurrent jurisdiction by Ontario courts where courts of another state have a closer connection to the child.
Accordingly, the nature and purpose of a return order made under CLRA s. 40(3) is the same as one made under the Hague Convention: to protect a child from the harmful effects of their wrongful removal or retention and to return a child wrongfully removed or retained to the jurisdiction which is most appropriate for the determination of custody and access.”