“With respect to the Ontario Court’s jurisdiction to make a chasing order, the mother relies on Articles 14 and 15 of the [Hague] Convention, which provide that:
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”
The mother also relies on the decision of Thomson v. Thomson, 1994 CanLII 26 (SCC), para 44 whereby the Supreme Court of Canada defined a chasing order as an order “made solely to bolster an application under the Hague Convention.” The order clarifies for the requested state that it is the requesting state’s opinion that the removal/retention is wrongful.
In her article, The Application of the Convention – From the Practitioner’s Perspective on the Hague Convention, 23 CFLQ 219 (2004), Phyllis Brodkin, provides the following list of reasons for obtaining a chasing order:
a. A chasing order gives an unequivocal message to the judge hearing the Hague Application in the requested state. Counsel in the requested state will be pleased to be armed with such a declaration, when they ask for the return of the child and it will prevent any undue delay caused by a late request by the requested state for such a declaration;
b. A chasing order in the home jurisdiction will often satisfy a reluctant judge in the requested state as to the safety of a child’s return. On the other hand, it will delay the return if counsel is forced to obtain such an order as a condition precedent to the return, after the application has been heard;
c. Seeking a chasing order in the requesting state creates a proceeding in which to obtain custody when the child is returned; and
d. A chasing order enables the parent seeking the child’s return to obtain an order that will assist in enforcing any return order made for when the child is back in the jurisdiction.”