In this decision, the Ontario Court of Appeal elaborated on its
brief reasons, provided April 18, 2011, setting aside an order to
return a child to her mother in Mexico pursuant to the
Convention on the Civil Aspects of International Child
Abduction (the "Hague Convention").
The order had been issued even though that child had already been
granted refugee status as a result of abuse by her mother. In this
decision, the Court provided its reasons on a constitutional
paramountcy challenge and held that the child should have
benefitted from heightened procedural protections pursuant to s. 7
of the Canadian Charter of Rights and Freedoms (the
In 2008, a 12-year-old girl who lived with her mother in Cancun,
Mexico, came to Toronto to visit her father. While in Toronto, the
girl disclosed that she was being abused by her mother. The girl
stayed in Toronto under the care of her aunts, and in 2010, she was
granted refugee status due to the threat of abuse by her mother.
The girl's mother subsequently brought an application under the
Hague Convention alleging that the girl was being wrongfully
retained in Ontario. The Court of Appeal found fault with a number
of the application judge's procedural decisions, the results of
which were that the hearing was uncontested by the father, the
aunts, or the girl. The application judge granted an order for the
girl's immediate return to Mexico.
On appeal, the girl's father argued that s. 46 of the
Children's Law Reform Act, R.S.O. 1990, c. C.12
("CLRA"), which incorporated
the Hague Convention, was rendered inoperative due to a conflict
with s. 115 of the federal Immigration and Refugee Protection
Act, S.C. 2001, c. 27
("IRPA"), which codifies the
international law principle that refugees should not be returned to
a country where they face certain serious threats
(non-refoulement). The Court of Appeal found that,
although the Hague Convention can require the return of children to
their countries of origin without express regard for refugee
status, exceptions in the Hague Convention allow for an
interpretation that prevents either an operational conflict with s.
115 of the IRPA, or a frustration of its purpose. The
Court of Appeal went on to posit that in Hague Convention
applications, there is a rebuttable presumption that the return of
a refugee child gives rise to a risk of persecution, thus requiring
consideration of the Hague Convention exceptions.
The court further established that a child who is a refugee must
be accorded procedural protections under s. 7 of the
Charter in proceedings to return that child to her country
of origin pursuant to the Hague Convention. In this context, s. 7
requires that the application judge conduct an assessment of the
risks associated with returning the child, and that the child has
the right to representation, notice of the application, adequate
disclosure of the case for an order of return, a reasonable
opportunity to respond and to state her views on the merits, a
hearing in cases where credibility is a serious issue, and a right
to reasons for the decision.
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