“A Hague Order for the return of children does, and should, not be conflated with a custody Order because the purpose of the Convention is to return a child to the jurisdiction most appropriate to determining parenting issues: Balev, at para. 24. This does not mean, however, that the court should ignore “best interests”: rather the “grave risk” exception analysis is more focussed than the broader consideration of which parent is best able to meet a child’s needs. As observed by Horkins J. in Stefanska v. Chyzynski, 2020 ONSC 3048, at para. 62, any “interpretation of this exception, short of a rigorous one, would rapidly compromise the efficacy of the Convention”. An in-depth analysis of the parties’ history is inappropriate: Leigh v. Rubio, 2022 ONCA 582, at para. 25. It is through this lens that the reference in Paschel to importing a “best interests” analysis must be viewed:
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- In the Article 13(b) analysis, the risk of grave harm to the specific child in returning him or her to an intolerable situation, imports the “best interests of the child”analysis. Evidence must be presented as to the risk of physical or psychological harm, and whether it is in the best interest of the child to be returned to the place of habitual residence. This is not conflating a custody concept into an Article 13(b) Hague Convention analysis. Rather, this question is mandated by Article 13(b)’s wording. The evidence must, of course, be credible and must meet the high threshold of “grave risk”. See: Pollastro v. Pollastro, 1999 CanLII 19933 (ON CA), [1999] O.J. No. 911 (Ont. C.A.).
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Credibility is important. As noted in Brown v. Pulley, 2015 ONCJ 186, at para. 163:
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- The credibility of the party seeking the Article 13(b) exception is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547(Ont. S.C.J.), affirmed at 2012 ONCA 469 (Ont. C.A. [In Chambers]).
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The overarching analysis also involves a consideration of the likelihood of future harm and its severity: Ojeikere v. Ojeikere, 2019 ONCA 372, at para. 62. In Hassan v. Garib, 2017 ONSC 7227 a mother claimed that the return of the child to the U.K. from Canada would put him at a grave risk of harm or would otherwise be intolerable. She alleged domestic violence that included verbal and physical abuse, assault, forcible confinement, police and social (and child protection) services involvement. The father disputed the allegations. Even with a finding that past violence occurred and was severe, Engelking J. confirmed that the court would still have to assess whether the violence was likely to recur. The court carefully assessed the mother’s allegations and shared third party concerns about the father as a perpetrator of domestic violence, but ultimately was unable to conclude that it was likely to recur: Hassan, at para. 90. The court was unable to prefer the credibility of one party over the other. It was also clear from the evidence that the mother was unhappy in her marriage.
In framing her analysis of “grave risk” Engelking J. considered the observations of Murray J. in Achakzad and reviewed the evidence in light of several questions which will be adapted to the evidence and facts of this case: They are:
(a) Is there evidence of physical or psychological harm to the children and is it severe?;
(b) Does the record show that Mr. Bodnaruk is dismissive of the mother’s allegations such that the behaviour alleged to have forced her to leave Texas is likely to recur?;
(c) Would the return of the children to Texas put them in an intolerable situation that cannot be appropriately addressed by the justice (and social services) system there?”