1 February 2019
Questions ne relevant pas de la Convention | Risque grave - art. 13(1)(b)
The mother and father married in 2014 and lived in Israel as a family. In November 2018 the mother left with the children for Canada without the knowledge of the father.
After their arrival in Canada, the mother begun the process of seeking refugee status. At the time of this decision, she and the children had been granted permission to stay in Canada until her refugee claim was formally addressed and determined at a hearing before the Immigration and Refugee Board.
The mother argued that returning to Israel would bit the children at a grave risk of harm within the meaning of Article 13(1)(b).
The Court held that the existence of an ongoing refugee claim should not act as a stay of 1980 Convention proceedings
The fact that the Canadian government had granted temporary status to remain in Canada based on the same abuse allegations did not mean that the Court should place greater reliance on these allegations being true. The Immigration Board had yet to determine whether the allegations could be substantiated and fact that there was an ongoing refugee claim did not mean the 1980 Convention proceedings should be delayed.
The Court held that, though an order to return the children would create a period of disruption and discord, this did not amount to a grave risk of physical or psychological harm or placing them in an intolerable position as envisaged by Article 13(1)(b). State protection could also be arranged in advance of the return.