Husid v. Daviau,
2012 ONCA 655 deals with the grave risk of harm exception to the general rule
that children abducted from one Hague Convention on the Civil Aspects of
International Child Abduction jurisdiction are to be returned. In this case,
the child was born in Peru
to a Peruvian father and a Canadian mother. The child was resident in Peru until the mother brought her to Ontario 16 months before
the trial. The mother and father were involved in litigation in Peru relating to custody and access and the
mother brought the child to Ontario under an
order permitting her to travel to Canada for a visit. The order
required the mother to return to Peru . Instead, she wrongfully
remained in Canada
with the child. The father brought an application under the Convention seeking
the child’s return. At trial, the mother
invoked Article 13(b) of the Convention to argue that the child should not be
ordered to return to Peru
since “there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an intolerable
situation.” The father denied any such risk and further contended that the
courts and authorities of Peru
could adequately deal with any risk should it be found to exist. The Court held:
[17] The
underlying purpose of the Convention, as set out in its preamble, is to protect
children from the harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the state of their
habitual residence.
[18] Once it has
been determined that a child was wrongfully removed under the terms of the
Convention, Article 12 mandates the return of the child “forthwith”:
Where a child has been wrongfully
removed or retained in terms of Article 3 and, at the date of commencement of
the proceedings before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year has
elapsed from the date of the wrongful removal or retention, the authority
concerned shall order the return of the child forthwith.
[19] Exceptions to
this mandate are created by Articles 12, 13 and 20. It is the exception
articulated in Article 13(b) that was invoked in this case by the mother and
that was accepted by the trial judge:
Despite the provisions of the
preceding Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person, institution
or other body which opposes its return establishes that:
…
(b) there is a grave risk that
his or her return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
[20] In this way,
the onus is on the person opposing the return of the child to establish a grave
risk of harm or exposure of the child to an intolerable situation. In Thomson v. Thomson, [1994] 3 S.C.R. 551,
La Forest J., writing for the majority of the Supreme Court of Canada,
interpreted Article 13(b) as follows, at p. 596:
[A]lthough the word
"grave" modifies "risk" and not "harm", this must
be read in conjunction with the clause "or otherwise place the child in an
intolerable situation". The use of the word "otherwise" points
inescapably to the conclusion that the physical or psychological harm
contemplated by the first clause of Article 13(b) is harm to a degree that also
amounts to an intolerable situation. [Emphasis in original.]
[21] Justice La Forest went on to endorse the following approach set
out by Nourse L.J. in Re A (A Minor)
(Abduction), [1988] 1 F.L.R. 365 (C.A. ), at p. 372:
[T]he risk has to be more than an
ordinary risk, or something greater than would normally be expected on taking a
child away from one parent and passing him to another. I agree ... that not
only must the risk be a weighty one, but that it must be one of substantial,
and not trivial, psychological harm.
[22] To this, the
Supreme Court added that the risk contemplated by the Convention need not come
from a cause related to the return of the child to the other parent, as opposed
to merely from the removal of the child from his or her present caregiver (at p. 597). In other
words, from a child-centred perspective, harm is harm. If the harm meets the
stringent test of the Convention, its source is irrelevant.
[23] In Pollastro v. Pollastro (1999), 43 O.R.
(3d) 485, at p. 496, this court developed upon the “harm is harm” direction to
hold that Article 13(b) is available to resist a child’s return when the reason
for the child’s removal is violence directed primarily at the parent who
removed the child: “returning a child to a violent environment places that
child in an inherently intolerable situation, as well as exposing him or her to
a serious risk of psychological and physical harm” (emphasis in original).
Some might wonder if
the decision would have been the same if the other country was, say, Great Britain rather than Peru
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