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Family - Hague Convention (3). Kirby v. Woods
In Kirby v. Woods (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where a "wrongfully retained child was ordered back to her country of origin after Canada granted her refugee status".
Here the court considers the interaction between Ontario child welfare (CLRA) law, it's integration of the Hague Convention, and Canadian refugee law:(1) Refugee Status, Grave Risk of Harm and the Rebuttable Presumption
[45] A.M.R.I. [SS: a case] establishes that when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence. In my view, this rebuttable presumption was not applied in this case.
(i) The Hague Convention and Grave Risk
[46] The Hague Convention is implemented as part of Ontario's domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are “(1) to treat the interests of children as paramount in matters relating to their custody; (2) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’; and (3) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’”: A.M.R.I., at para. 47, citing the preamble of the Hague Convention.
[47] To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child’s habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests.”
[48] The mandatory return requirement under the Hague Convention is subject to limited exceptions, including, at art. 13(b), where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
[49] The governing case on the meaning of grave risk of harm within the Hague Convention is Thomson. In that case, the Supreme Court held that to constitute grave risk, the risk must be weighty and substantial, and must place the child in an intolerable situation: at p. 597. The word “grave” modifies the “risk” and not the “harm”: Thomson, at p. 596. The assessment must be undertaken from a child-centred perspective: Thomson, at p. 597. Stated otherwise, this defence to return will only be met in “situations that an individual child should not be expected to tolerate”: F. v. N., at para. 73, as cited in Osaloni v. Osaloni, 2023 ABCA 116, at para. 12. This is a high threshold: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 37, 40. Consistent with the objectives of the Hague Convention, the threshold does not require that children be “pushed beyond the limits of endurance”: Landman v. Daviau, 2012 ONSC 547, 17 R.F.L. (7th) 332, at para. 103, aff’d Husid v. Daviau, 2012 ONCA 655, 298 O.A.C. 182, leave to appeal refused, [2012] S.C.C.A. No. 485.
[50] The grave risk threshold may be met by the actions or pattern of behaviour of a parent, with or without physical violence against a child. In Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (C.A.), this court held that a continued pattern of escalating abuse, combined with threats against the mother and her family were sufficient to create an intolerable situation for the child, where the child had not, himself, been physically abused by the father: see also Husid.
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(iv) The Intersection of Grave Risk and Canada’s Non-Refoulement Obligations
[68] This court first grappled with the intersection of refugee status and the Hague Convention in A.M.R.I. The approach taken therein was confirmed more recently in A.A. v Z.S.M., 2025 ONCA 283. In A.M.R.I., the court relied on the Supreme Court’s decision in Németh to conclude that, “a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child”: at para. 78.
[69] Németh, decided in the extradition context, determined that that if s. 44(1) of the Extradition Act, S.C. 1999, c. 18, is properly applied, there will be no breach of the non-refoulement principle in the removal of an individual who has been found to be a Convention refugee. Section 44(1) of the EA, like s. 115(1) of the IRPA, gives effect to Canada’s non-refoulement obligations. While s. 115 of the IRPA does not preclude extradition, Cromwell J. stressed, at para. 58 of Németh, that where a person has been found to be a refugee, the exercise by the Minister of Justice of his power of surrender must “give sufficient weight or scope to Canada's non-refoulement obligations in light of which those powers must be interpreted and applied". He explained at para. 105:[M]y view is that where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement, that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution. [70] Németh contemplates two circumstances in which a removal of a person found to be a Convention refugee would be permissible. Notably, nothing in Németh, other than as set out below, suggests that a court considering return should go “behind” the refugee determination itself.
[71] First, Németh instructs that where the Minister is considering the removal of a refugee, a forward-looking risk assessment should be undertaken to determine whether the risk that led to the refugee determination persists. The burden to show otherwise is on the Minister, not the claimant. A “change of circumstances” in a refugee’s country of origin may lead to the cessation of refugee protection, without the need for a formal revocation of refugee status: see paras. 103-7, 114. Refugee status is “temporal,” as discussed above; accordingly, if the risk is no longer present, the person ceases to be a refugee, and there is no refoulement upon return.
[72] Second, Németh also identifies vitiating circumstances that may come to light after a refugee determination is made. These could include evidence that refugee status was obtained through misrepresentation or withholding material facts. Again, the burden is on the Minister, not the refugee: at para. 110.
[73] In A.M.R.I., this court determined that the Hague Convention also contemplates respect for Canada’s non-refoulement obligations: A.M.R.I., at para. 68. Like s. 44(1) of the EA, art. 13(b) of the Hague Convention “must be construed in a manner that takes account of the principle of non-refoulement”: A.M.R.I., at para. 68. This, the court held, ensures compliance with Canada’s treaty obligations: A.M.R.I., at para. 69.
[74] Accordingly, when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence that engages the grave risk of harm exception: A.M.R.I., at para. 74.
[75] While noting the differences between court and IRB procedure and treatment of evidence, and reminding judges to be alert to any apparent attempt to misuse the refugee system, this court in A.M.R.I. directed at para. 74, that:[W]hen a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence. A risk of “persecution” in the immigration context clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention. [Emphasis added.] [76] Further, in articulating the presumption, this court in A.M.R.I. emphasized the deference to be shown to the decision of the IRB on a refugee claim, stating at para. 72:What, then, is the significance of an IRB refugee determination on a Hague Application? In order to grant a refugee claim, the IRB must be satisfied, on a balance of probabilities, based on evidence that it regards as trustworthy and reliable, that a refugee claimant faces a reasonable chance of persecution. Given its expertise and specialized knowledge, the decisions of the IRB on fact and credibility-driven issues are accorded a high degree of deference by the courts…. [Citations omitted.] [77] Relying further on Németh, this court in A.M.R.I. stated that in implementing the presumption, “there should be no burden on the child who has refugee status to persuade the application judge that ‘the conditions which led to the conferral of refugee protection have not changed’”: at para. 78, citing Németh, at para. 106.
[78] In my view, based on both Németh and A.M.R.I., and recognizing the “high degree of deference” to be shown to IRB decisions, the rebuttable presumption requires the following of a judge hearing a Hague application:a. A court must not categorically dismiss the IRB’s refugee determination process due to differences in procedure and evidentiary standards that have been specifically designed for the unique functions of that tribunal. The A.M.R.I. framework accounts for those differences in the articulation of the presumption;
b. Courts should, in general and subject to (c), below, respect and defer to determinations of fact and credibility made by the tribunal and resist engaging in a reweighing of evidence considered in the refugee determination process;
c. Recognizing that refugee determinations are typically oral hearings while Hague applications tend to be summary procedures without oral evidence, a court with serious doubts about fact and/or credibility findings of the RPD in a specific case should give due consideration to permitting oral evidence and cross-examination;
d. Courts should respect and defer to the expertise of the IRB in assessing country conditions, the ability of the state to protect, and the assessment of internal flight alternatives. These are issues squarely within the expertise of the tribunal. Absent serious doubts about the analysis or findings of the RPD, courts should be cautious in permitting evidence to be called that attempts to undermine or re-visit the conclusion of the tribunal on these issues. Where, as here, such evidence has been called before the refugee determination is known, this evidence should be revisited in light of the refugee determination and given appropriate weight, recognizing the RPD’s expertise. The evidence of a single expert, in general, would be unlikely to override conclusions reached by the RPD based on the extensive documentation in the applicable NDP.
e. In considering whether to return a refugee child, the non-refoulement obligation requires an assessment of whether risk persists; this is a forward-looking analysis based on changed circumstances in the country of habitual residence, with no onus on the refugee: Németh, at paras. 106-7, 111 and 114.
f. To go behind the refugee determination itself would require case-specific evidence of misrepresentation or withholding of facts before the RPD: Németh, at paras. 108, 110. A court ought not embark on enquiry into the validity or integrity of the refugee determination absent serious doubt about the findings, analysis, and conclusions of the RPD on the facts before the court.
g. So long as the refugee proceeding is protected by the IRPA’s confidentiality provisions, the refugee claimant need not but may disclose documents prepared for or relied on in the refugee determination process in the Hague application. Recognizing the confidentiality protections inherent in the refugee determination process, it will be rare that a Hague application judge, without oral evidence, draws an adverse inference or negative credibility determination based on a refugee claimant’s choice not to produce such documents.
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