Grave Risk of Harm under the Hague Convention – Husid v. Daviau

BACKGROUND

The parties were married in 2003 and separated in 2008. The father was Peruvian and the mother was Canadian. They had one child, a daughter aged 6.

Both prior to and post-separation, the mother alleged violence by the father, which was witnessed by the child on two occasions.

Upon separation, the parties commenced litigation in Peru relating to custody and access to the child. Thereafter, 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.

Once in Canada, the mother refused to return to Peru. The father brought an application under the Hague Convention seeking the child’s return.

At trial, the mother argued that the child should not be required to return to Peru since there was a grave risk that her return would expose the child to harm under Article 13(b) of the Hague Convention. The father denied the mother’s claims in this regard.

The trial judge dismissed the father’s application for the child’s return to Peru on the grounds that the mother had made a case for grave harm under Article 13(b) of the Convention. The court ordered that the mother could proceed in Ontario with her claim for custody and access.

The father appealed this decision.

ANALYSIS

The Court of Appeal began its analysis by setting out the purpose of the Hague Convention, of which Canada and Peru are both signatories. Specifically, the court explained that the underlying purpose of the Convention is to protect children from the harmful effects of their wrongful removal and to create procedures to facilitate their safe and speedy return to the place where they are habitually resident.

Once a child has been deemed to have been wrongfully removed under the terms of the Convention, Article 12 requires that the child be returned “forthwith”.

However, there are some exceptions to this requirement, including Article 13(b), which prevents the return of a child to a situation where they may be exposed to a grave risk of harm.

In reviewing the trial judge’s findings, the court found that the evidence in the case easily supported the findings of fact made by the judge, as well as his conclusion that the child’s return would pose a grave risk of harm to her, or place her in an intolerable situation.

Specifically, the court found compelling that the father and his family had threatened the mother with death and violence, that the father had used physical force against the mother as reported in a legal medical certificate, and that a court psychologist found that the child had been affected by the violence in the family unit.

As a result, the court found no reason to interfere with the trial judge’s findings and dismissed the father’s appeal.

 

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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