“The Hague Convention is law in Ontario, pursuant to s. 46(2) of the CLRA. The Hague Convention sets out the rules that apply to the parental wrongful abduction or retention of children across international borders.
The purpose of the Hague Convention, as set out in Article 1, is to enforce custody rights and secure the prompt return of wrongfully removed or retained children to their country of habitual residence. A prompt return is intended to achieve speedy adjudication of the merits of a custody or access disputes (as it was formerly known in Ontario) in the forum of a child’s habitual residence. When an application is brought under the Hague Convention, the court is not being asked to determine issues of parenting, but rather in which jurisdiction the parenting issues should be determined.
In an application under the Hague Convention, the first question to be asked is whether there has been a removal or retention of the child from their habitual residence that is considered wrongful. Article 3 of the Hague Convention directs the court to a two-part test:
a) Is the removal or retention in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention; and
b) At the time of removal or retention were those rights actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention?
If the requirements under Article 3 are met, Article 12 requires the judge to order the return of the child forthwith, unless certain exceptions apply. These exceptions, under Articles 12, 13, and 20, include:
a) The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment: Article 12.
b) The parent seeking return was not exercising custody rights at the time of the removal or retention or consented or subsequently acquiesced to the removal or retention: Article 13(a);
c) There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation: Article 13(b);
d) The child is of sufficient age and maturity and objects to being returned: Article 13(2); or
e) The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state: Article 20.
On the facts provided, this court is being asked to find that the child was wrongfully retained. In order to determine if the retention was wrongful, the court must first determine the date of the alleged wrongful retention and then, determine where the child was habitually resident on that date. In this case, if the child was habitually resident in Mexico, then there is no wrongful retention and the Hague Convention has no application. If the habitual residence of the child is Ontario, then the Applicant Mother is able to avail herself of the Hague Convention to request that the child be returned to Ontario where the parties can litigate their parenting rights: Ludwig v. Ludwig, 2019 ONCA 680, at paras. 21, 24-25; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 36.”