“In Children’s Lawyer v. Balev 2018 SCC 16 at 28-29 the court stated that the heart of the Hague Convention’s prompt return mechanism is Article 3, which provides that the removal or retention of a child is wrongful (a) where it is in breach of custody rights under the law of the state in which the child was habitually resident immediately before the removal or retention and (b) where those rights were actually being exercised or would have been exercised, but for the wrongful removal or retention.
If the requirements of Article 3 are established, Article 12 requires that the judge in the requested state order the “return of the child forthwith” unless certain exceptions apply. Those exceptions in summary are:
1) The parent seeking return was not exercising custody or consented to the removal or retention (Article 13 (a);
2) There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13 (b);
3) The child of sufficient age and maturity objects to being returned (Article 13 (2);
4) The return of the child would not be permitted by fundamental human rights and fundamental freedom of the requested state (Article 20); and
5) The application is brought one year or more from the date of the wrongful removal or retention and the judge determines that the child is settled in the new environment (Article12).
Accordingly, there are two stages to a Hague Convention application: determining the habitual residence of the child, and, if the child is found to be habitually resident in the state of the applicant, determining if one of the exceptions to ordering return applies. If the child is not found to be habitually resident in the state of the applicant, then the Hague Convention does not apply and there is no need to consider the exceptions.”: Balev, at para. 36.