Ontario Court of Justice
Justice Marion Cohen
5 March 2013
Non-Convention Issues | Grave Risk - Art. 13(1)(b) | Human Rights - Art. 20 | Objections of the Child to a Return - Art. 13(2)
J.E.A. v. C.L.M.  N.S.J. No. 446; A.M.R.I. v. K.E.R. ONCA 417 2011; Pollastro v. Pollastro  O.J. No. 911
The mother and father lived in Latvia. They married in 2001, had a child in 2004 and divorced in 2007.
In January 2010, unbeknownst to the father, the mother left Latvia with her parents, her new husband, and the child. On arrival in Canada the family claimed refugee status. The claim was successful. The respondent and all of her family members, including the child, were recognized as refugees within the meaning of the United Nations Convention Relating to the Status of Refugees in October 2011.
In January 2010 the father made an application under the 1980 Convention for the return of the child.
The mother invoked Articles 13(1)(b) and 20 of the Convention, arguing that they be construed in a manner that takes into account the principle of non-refoulement arising from the child’s status as a refugee.
The Court found that the mother and the child were refugees based on a well-founded fear both of persecution by the applicant, and that state protection in Latvia would not be forthcoming. The child refugee has a prima facie entitlement to protection against non-refoulement. Applying the principles from A.M.R.I. v. K.E.R., a rebuttable presumption arose that the return of the child to Latvia would expose her to a grave risk of harm. The father failed to rebut the presumption.
The Court also commented on the issue of delay in the case, noting that much of the delay arose because the parties were awaiting the outcome of the refugee claim. This was said to be justifiable and not frivolous reason for delay.
The Court determined the application based on the arguments put forward by the mother (under Article 13(1)(b), Article 12 and the child’s wishes) and independently of the issue of delay and of the fact that the child was well settled in Canada.
The Court found that, on the evidence, returning the child would mean she would be exposed to a dangerous and intolerable situation and that the exception under Article 13(1)(b) of the Convention was established.
Generally speaking, in applications under the 1980 Hague Convention, the courts should assume that courts of the requesting country are able to deal with custody and access issues. However, in this case the Court emphasized the importance of the finding by the Canadian Immigration and Refugee Board that the mother and the child could not be adequately protected from domestic abuse in Latvia.
The Article 20 exception to return was also found to be established as the father was the perpetrator of the abuse which has resulted in the child’s presence in Canada. The respondent and child would face a risk of serious harm in Latvia which could not be adequately mitigated by State protection. Therefore, ordering the child’s return in these circumstances is not permitted by fundamental Canadian principles relating to the protection of human rights and fundamental freedoms.
Though the child was eight years of age the court found that it was appropriate to take account of her views as she was bright, articulate, and able to express her preference She was afraid her mother will be harmed by her father (a fear validated by other evidence) and wished to remain with her mother in Canada.