Case information

Family Law — Parental authority — Immigration — Convention refugees — Hague Convention — How should courts exercise judicial discretion to determine a Hague Convention case where a refugee claim has been advanced on behalf of a child? — What documentation from the refugee proceeding should be produced to the court for consideration in the Hague Convention application and at what point during the proceedings? — How much weight should be placed on a child’s objections when they are found to be a refugee in Canada? — Did Court of Appeal err in setting aside application judge’s decision?

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The parties are all nationals of a country that is a signatory to the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The respondent parent and child travelled to Canada, and the respondent filed a refugee claim in Canada for each of them. The applicant parent brought an application seeking the child’s return to the country of habitual residence pursuant to the Hague Convention. Prior to that application being decided, the child was determined to be a Convention Refugee by the Refugee Protection Division of the Immigration and Refugee Board (“IRB”).

The application judge concluded that none of the exceptions to mandatory return in the Hague Convention applied. She was not satisfied that there was a grave risk that the child’s return would expose her to harm and she was not bound by the IRB’s decision, nor would returning the child engage the principle of non-refoulement. The application judge concluded that the child’s objections to being returned were the result of influence by the parent who was also in Canada. The Court of Appeal allowed the appeal on the basis of errors of law. There was no basis to conclude that the child’s objections were the result of influence, and the judge did not properly apply the presumption against return where a positive refugee determination has been made. The Court of Appeal remitted the matter to a different judge of the Superior Court for determination of decision-making authority and parenting time.