“The Hague Convention is “aimed at enforcing custody rights and securing the prompt return of wrongfully removed or retained children to their country of habitual residence”: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at para. 24. A return order is not a custody determination, but only an order to restore the status quo, and return the child to the jurisdiction which is most appropriate for the determination of custody and access issues: Balev, at para. 24.
The test for when the Hague Convention applies is set out in Article 3. It provides that the removal or retention of a child is considered wrongful where it breaches the custodial rights of the left behind parent in the State where the child was habitually resident immediately before the wrongful removal or wrongful retention. Said custodial rights can include joint custodial rights, and can arise from law, a decision, or an agreement that has legal effect: Andegiorgis v. Giorgis, 2018 ONCJ 965, at para. 21. And Balev, at para. 28.”