COURT OF APPEAL FOR ONTARIO
CITATION: Maarif v. El Fazazi, 2026 ONCA 584[1]
DATE: 20260817
DOCKET: M57158 & COA-26-CV-0350
Thorburn, Madsen and Rahman JJ.A.
BETWEEN
Karim Maarif
Applicant (Respondent)
and
Jihade El Fazazi
Respondent (Appellant)
Michael J. Stangarone, Tiffany Guo, and Nicole Clyde, for the appellant
Anthony Macri and Fahmida Akhter, for the respondent
Caterina Tempesta and Dahlia Shuhaibar, for the Office of the Children’s Lawyer
Heard: June 12, 2026
On appeal from the order of Justice Adriana Doyle of the Superior Court of Justice, dated February 20, 2026, with reasons reported at 2026 ONSC 977.
[1] This is an appeal from an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“the Convention”). The appellant, Jihade El Fazazi, (the “mother”) brought the child to Ottawa, Canada, from Morocco on March 19, 2025, without the consent of the respondent, Karim Maarif (the “father”). The father sought the return of the child pursuant to the Convention.
[2] The application judge found that Morocco was the child’s habitual residence and that the mother had not established that any exceptions to the mandatory return of the child applied. She ordered the return of the child subject to certain undertakings by the father. The mother appeals.[2] For the reasons that follow, I would allow the appeal.
I. Brief Background
[3] The child was five years old at the time of trial. She was born in Rabat, Morocco, in 2020, and has a Moroccan passport. Prior to her removal, the child was attending kindergarten in Morocco.
[4] The parties were married in Morocco in January 2017 and divorced by consent on July 20, 2022, after signing a Mutual Divorce Agreement dated July 18, 2022. The child, who was two years old at the date of separation, has been in the primary physical care of the mother since the parties separated, four years ago.
[5] A divorce judgment dated October 12, 2022, granted the mother physical custody of the child and parenting time to the father each Sunday from 9 a.m. to 6 p.m. and on the second half of all school, religious and national holidays.
[6] By operation of Moroccan law, the father retained the rights of legal guardianship. This includes the right to supervise the upbringing of the child, the right of daily educational follow-up and the right to request the revocation of custody. The mother required the father’s consent for key administrative actions, such as school enrolment or international travel, unless a court order states otherwise.
[7] The parties experienced considerable conflict after separation and before the mother removed the child from Morocco. Each initiated complaints against the other through the Moroccan legal system. The father primarily lodged complaints about the mother’s alleged denial of his parenting time. The mother’s complaints were primarily that the father threatened and harassed her.
[8] The father was convicted of assaulting the child during his parenting time in September 2023. A complaint filed by the mother in Morocco indicated that she had noticed bruising under the child’s eyes, which the child told her was due to beating by the father. On September 23, 2025, the father was found guilty of “misdemeanour of assault and violence against the child” under s. 408 of the Moroccan Criminal Code. The Moroccan court imposed a one-month suspended sentence and a fine. The father has appealed the criminal conviction.
[9] The mother left Morocco with the child and without the father’s knowledge or consent, arriving in Canada on March 19, 2025. She was granted permanent residency upon her arrival in Canada and applied to sponsor the child soon after. At the time of trial, the child had a temporary visitor authorization. Fresh evidence indicates that the mother received further legal advice and has now filed a refugee application for the child.
[10] The father obtained a “chasing order” in Morocco, dated May 19, 2025. That order revokes the mother’s custody and grants all rights relating to the child to the father. The fresh evidence includes documentation indicating that the mother’s appeal of this order was dismissed by the Court of Appeal in Rabat, Morocco, on June 1, 2026.
[11] The mother lives with her partner in Canada. They are not married. The evidence of all three experts at trial was that cohabiting outside marriage would make it extremely difficult, if not impossible, for the mother to return to Morocco and resume parenting of the child. If she returns to Morocco and continues unmarried cohabitation, she is exposed to criminal prosecution. If she returns to Morocco and marries her partner, she very likely loses any claim to parenting time or decision-making responsibility for the child.
[12] At the time of trial, the father had only had virtual parenting time with the child once since she was removed from Morocco. As at the hearing of the appeal, the fresh evidence indicated that he had had further video calls with her.
II. Procedure and Decision Below
[13] The father commenced an application seeking, among other orders, the return of the child under the Convention, on August 21, 2025. The mother filed an answer dated October 24, 2025. The father filed a reply on November 4, 2025. On October 31, 2025, the Office of the Children’s Lawyer (“OCL”) assigned a lawyer and a clinician to represent the interests of the child. The trial took place over eight days, commencing on January 27, 2026, with final submissions on February 4 and February 9, 2026. The decision was released promptly, on February 20, 2026.
[14] The evidence before the application judge was extensive and many issues were raised. The parties filed affidavits, briefly testified in-chief, and were cross-examined. Three experts, a Moroccan lawyer called by the mother, a Moroccan lawyer called by the father, and a professor with expertise in Islamic law, called by the OCL, filed reports and were cross-examined. Both parties filed two third-party affidavits and the third parties were cross-examined. In addition, several videos, complaints and police reports were accepted into evidence. The court also considered the evidence of the OCL clinician who privately interviewed the mother, the father, and, on three occasions, the child.
[15] The application judge reviewed the evidence carefully and comprehensively, and her decision is both thoughtful and thorough.
[16] It is evident that the application judge regarded this case, at its core, as high- conflict, with both parents harnessing the Moroccan legal system against one another. She expressed concerns about the mother’s overall credibility and found that she minimized the father’s role in the child’s life. She accepted that there “may have been some form of domestic violence of verbal abuse during the marriage,” but did not accept the mother’s allegations of physical violence or of coercive controlling behaviour. She found the mother equivocal about whether she was permitted to leave Morocco when she did.
[17] The application judge ordered the return of the child to Morocco, subject to certain undertakings by the father. In so doing, she determined, inter alia, that:
(1) The child’s habitual residence was Morocco, and the mother wrongfully removed her;
(2) The father was exercising his custodial rights at the time of the child’s removal from Morocco;
(3) The father did not consent to the child’s removal;
(4) The mother failed to show that the child would be exposed to grave risk of harm upon return to Morocco;
(5) While the child told the OCL clinician that she wished to remain in Canada with her mother, the application judge exercised her discretion not to dismiss the application for return on that basis; and,
(6) The return of the child to Morocco was not inconsistent with fundamental human rights and freedoms in Canada.
[18] In determining that the grave risk of harm exception was not engaged, the application judge concluded that:
(1) the operation of Moroccan family law, while different from Ontario family law, did not pose a grave risk to the child as it has as its paramount principle the best interests of the child;
(2) while the father had been convicted of violence against the child, there was only one act of violence towards her, and this did not rise to the level of grave risk of harm; and,
(3) while the child would most likely be separated from her primary caregiver, this risk was speculative and did not rise to the level of a grave risk of harm.
III. Issues on Appeal
[19] The mother submits that the application judge made numerous errors. She also seeks to adduce fresh evidence of what she asserts is the father’s non-compliance with his undertakings, as well as information about the child’s pending refugee claim. As already mentioned, immediately before the appeal hearing she also submitted a letter informing this court that the Moroccan court had dismissed her appeal of the order granting the father exclusive rights to the child.
[20] I would summarize the main asserted errors as follows.
[21] First, she submits that the application judge erred in determining that Morocco is the child’s habitual residence.
[22] Second, she submits that the application judge misapplied the legal principles related to the grave risk of harm exception: in her determination that Morocco applies a best interests framework to the assessment of parenting issues, and her assessment of gender-based differentiation in Moroccan law; her treatment of the mother’s allegations of family violence; her treatment of the father’s criminal conviction for an assault directly on the child; and her assessment of the impact of the child’s separation from her primary caregiver.
[23] Further, the mother submits that the application judge failed to provide adequate reasons for not deferring to the child’s objection to return, and that she erred in ordering costs against the mother.
[24] The OCL supports the mother’s submissions and the admission of fresh evidence. It makes two supplementary submissions. First, the OCL submits that the application judge failed to appropriately consider the barriers to the mother’s return to Morocco and the near certainty that the child would be separated from her primary caregiver. Second, based on the proposed fresh evidence, the OCL submits that the child must not be returned given her pending refugee claim.
[25] The father seeks the dismissal of the appeal. He submits that the positions of the mother and the OCL amount to requests to reweigh the evidence. He argues that their positions are contrary to the governing case law.
[26] The father opposes the admission of the fresh evidence, primarily as it pertains to the child’s pending refugee claim. He submits that the immigration-related material is largely hearsay and unqualified opinion evidence; the possibility of a refugee claim was foreseeable before trial; and the pending refugee claim is in any event invalid since it was filed outside the statutory timeline of one year set out in s. 101(1)(b.1) of the Immigration and Refugee Protection Act, SC 2001 c. 27 and has not yet been referred to the Refugee Protection Division.
IV. ANAlysis
[27] I would allow the appeal solely on the application judge’s treatment of the father’s criminal conviction for assault against the child. The determination of whether there is grave risk of harm upon return requires a prospective and cumulative assessment. The criminal conviction should have been considered in conjunction with the child’s near certain separation from her primary caregiver, and the lack of any prospective safety plan for the child.
[28] I would admit the fresh evidence as providing the most up-to-date information about the child. The fresh evidence does not, however, determine the outcome of the appeal.
[29] Although not strictly necessary, I address the central unsuccessful arguments raised on this appeal, including the child’s objection to return and the pending refugee claim, as they were fully addressed in written and oral argument.
[30] Given my conclusion on grave risk of harm, this appeal does not turn on the child’s refugee claim.
1. Fresh Evidence
[31] I would grant the mother’s fresh evidence motion and admit the fresh evidence. The test set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 for admitting fresh evidence “is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering a decision that could profoundly alter the course of a child’s life”: Barendregt v. Greblunias, 2022 SCC 22, at para. 4. As set out in M.A.A. v. D.E.M.E., 2020 ONCA 486, at para. 33, “[w]hen the welfare of a child is at stake the courts adopt a flexible approach to the admission of new and/or fresh evidence, consistent with the need for up-to-date information on children and matters relevant to their best interests”.
[32] The welfare of this child requires that this court have before it evidence relevant to a full appreciation of the circumstances.
2. The Analytical Framework for Convention Proceedings
[33] The purpose of the Convention is to enforce custody rights and secure the prompt return of a child who has been wrongfully removed: Ludwig v. Ludwig, 2019 ONCA 680. Prompt return protects against the harmful effects of removal and establishment of links to a new country, deters parents from abducting children, and provides for the resolution of custody issues in the country of habitual residence: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at paras. 24 – 27.
[34] First, the court determines the habitual residence of the child, and on that basis, whether the Convention applies. Second, if the Convention applies, the court will consider whether any of the five exceptions to return applies, such that the court is not bound to order the return of the child: Balev at paras. 103 - 4:
(1) The application for return was brought more than one year from the wrongful removal or retention and the court determines that the child is settled in her new environment (art. 12).
(2) The parent seeking return was not exercising rights of custody at the time of the removal or consented to the removal or retention (art. 13(a));
(3) There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (art. 13(b));
(4) The child of sufficient age and maturity objects to being returned (art. 13); or,
(5) The return of the child would not be permitted by fundamental human rights and freedoms of the requested state (art. 20).
[35] The mother submits that the application judge erred at both stages of the analysis.
3. Habitual Residence of the Child
[36] The mother submits that the application judge erred in her determination that Morocco is the child’s habitual residence. She asserts that the child’s habitual residence should be tied to her, as her primary caregiver since birth, rather than to a geographic location. On this basis, she says, the child’s habitual residence was Canada, and the Convention does not apply. The mother relies on the statement in Balev, at para. 46 that there is no “rule” that the actions of one parent cannot unilaterally change a child’s habitual residence in support of this submission.
[37] On the “hybrid approach” to habitual residence, the application judge determines “the focal point of the child’s life immediately before the removal or retention” [emphasis added]. In so doing, the court considers “all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B”: Balev, at para. 43.
[38] The application judge did precisely that. She set out the applicable law and carefully considered the child’s many links to Morocco, the circumstances of her move from Morocco to Canada, and her links to and circumstances with her mother in Canada, including attendance at school, and participation in swimming and skating lessons.
[39] The application judge’s conclusion that prior to her removal, the focal point of the child’s life was Morocco, is both entitled to deference and clearly correct: Balev, at para. 38. This ground of appeal cannot succeed.
4. Grave Risk of Harm
[40] In this section, I set out key principles on grave risk of harm and then turn to the main errors alleged by the mother and the OCL.
[41] Specifically, I address the submissions related to the application of Moroccan law; the treatment of the mother’s allegations of intimate partner violence; and the approach to the conviction for violence against the child. A separate ground of appeal is raised about the separation from the child’s primary caregiver. In this case this is intertwined with the approach to the conviction, and those issues are addressed together.
a. Key Principles
[42] The caselaw sets a high threshold for what constitutes “grave risk of harm”[3] under art. 13(b) of the Convention[4]:
(1) To constitute grave risk of harm under the Convention, the risk must be “weighty and substantial” and must place the child in an “intolerable situation”. The word “grave” modifies the word “risk” and not the “harm”: Thomson, at p. 595. As this court stated in Rayo Jabbaz v. Rolim Mouammar (2003), 2003 CanLII 37565 (ON CA), 226 DLR (4th) 494, at para. 23, “[t]he use of the word “intolerable” speaks to an extreme situation, a situation that is unbearable, a situation too severe to be endured”.
(2) The exception to return will only be met in situations that “an individual child should not be expected to tolerate”: F. v. N., 2022 SCC 51, at para. 73. However, the threshold does not require that the child be “pushed beyond the limits of endurance”: Husid v. Daviau, 2012 ONCA 655, leave to appeal refused, [2012] S.C.C.A. No. 485; Kirby v. Woods, 2025 ONCA 601, at para. 49. Neither the Convention nor Thomson require that the risk be “life threatening”: Kirby, at para. 89;
(3) Returning a child to a violent environment places that child in an inherently intolerable situation: Pollastro v. Pollastro, (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (C.A.), at p. 496; Husid, at para. 23.
(4) Violence against a parent may but does not always constitute grave risk of harm to a child; Pollastro; Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226.
(5) A criminal conviction related to abuse, whether against a parent or a child, is not required to invoke the art. 13(b) exception where sufficient evidence is presented that an intolerable situation for the child exists: Lombardi v. Mehnert, 2008 ONCJ 164.
(6) Separation from a primary caregiver may, but does not always, rise to the level of serious harm to a child, either on its own or in combination with other factors: F. v. N., at paras. 78, 79; Thomson, p. 597. Considerations include: the child’s age, special needs, and vulnerabilities that may mitigate or aggravate risk of harm. Parenting capacity of the left-behind parent and alternate caregivers as well as the child’s sense of safety are relevant considerations: F. v. N., at para. 80.
(7) At the same time, a parent ought not to be able to create the harm and then rely on it through their own refusal to return: F. v. N., at para. 82.
[43] In assessing grave risk of harm, the onus is on the party opposing return: Thomson, at p. 596; Husid, at para. 20. The assessment is undertaken from a child-centered perspective: Thomson, at p. 597. From a child-centered perspective, harm is harm, and if it is severe enough to meet the stringent test of the Convention the source is not relevant: F. v. N., at para. 70 citing Thomson, at p. 597.
[44] The assessment of grave risk of harm is forward-looking and requires an assessment of the likelihood and the severity of the anticipated harm: F. v. N., at para. 71; Ojeikere v. Ojeikere,2018 ONCA 372, at para. 62. The assessment of grave risk of harm is necessarily holistic and cumulative. The exception may be engaged by a single factor or a combination of factors: F. v. N., at para. 71; see also: Barendregtat para. 144. Whether the risk is “grave” requires a highly individualized assessment focused on the circumstances of the child: F. v. N. at para. 72.
[45] Additionally, all barriers to the return of the primary caregiver should be considered, both voluntary and involuntary. Definitive legal obstacles to return should be distinguished from a choice not to return when there is no legal impediment. A primary caregiver’s refusal to return may, but will not always, be unjustified: F. v. N., at paras. 82, 83.
b. Application of Moroccan Law
[46] The mother submits that the application judge erred in her assessment of the expert evidence and in concluding that Moroccan family courts apply a best interests framework to parenting decisions. She submits that the application judge misapprehended the evidence about legal guardianship, how criminal complaints are addressed, as well as the treatment of women and children under Moroccan law. She asserts that Moroccan law is itself a source of grave risk of harm.
[47] The mother’s position is both antithetical to Canada’s commitments under the Convention and contrary to the Supreme Court of Canada’s guidance in F. v. N., where the father sought return of children to the United Arab Emirates (U.A.E.) under the CLRA. Although the U.A.E. is not a signatory to the Convention, the court nevertheless stated, at paras. 121-22:
The Mother is mistaken to invite us to interfere with the trial judge’s reading of the expert evidence and to conclude, based on our own interpretation of UAE law, that a parenting determination in Dubai would not be based on the children’s best interests. The Mother’s position appears to be that the absence of a best interests regime is endemic to UAE law — a position that even the dissenting judge rejected (C.A. reasons, at para. 254).
As a result, the Mother has offered no principled basis to revisit the trial judge’s conclusion that, despite the diverging conceptions of family law in the UAE and in Ontario, the children would not be exposed to serious harm if returned to Dubai.
[48] Morocco is a signatory to the Convention. As set out by this court in Zafar v. Azeem 2024 ONCA 15 at para. 40: “[w]hen dealing with signatories to the Hague Convention, we take comfort from the fact that they, like Canada, are committed to making decisions based on the best interests of children”.
[49] That said, signatory countries are not necessarily homogenous. As the Supreme Court instructs in F. v. N. at para. 88, “[t]he proper approach recognizes that inconsistencies between local and foreign regimes will usually not amount to serious harm if the best interests of the child principle remains the paramount consideration”. Courts must guard against “the rather provincial view” that unless Ontario law is applied, children will suffer serious harm: see F. v. N., at para. 10, quoting Hourigan J.A.
[50] Where the argument is made that children’s best interests are not, in fact, paramount, it is for the application judge to weigh and consider any expert evidence on that issue. Absent palpable and overriding error, her determination is entitled to deference: F. v. N., at para. 121.
[51] The application judge reviewed the expert evidence thoroughly, identifying many points of agreement among the three experts. While the application judge noted differences between laws governing parenting as between Morocco and Ontario, including Morocco’s gender-based presumptions, she concluded that Moroccan law has as its paramount principle the best interests of the child. She held that the application of Moroccan law would not pose a grave risk to the child in this case.
[52] I see no basis to interfere with her conclusion.
c. The Mother’s Allegations of Violence
[53] The mother and the OCL submit that the application judge erred in her treatment of the mother’s allegations of intimate partner violence and coercive controlling behaviour by the father. They assert that the father’s conduct explains and justifies the mother’s choice to remove the child to Canada and indicates the grave risk of harm to the child upon return.
[54] The application judge was alive to the mother’s allegations. She set out, in detail, the mother’s evidence about the father’s conduct in Morocco. This included “unilateral decision-making, restriction of movement, social and family isolation, interference with education and career, financial control, surveillance and regulation of appearance”. She acknowledged the mother’s allegations that the father threatened her and subjected her to physical violence. She also recognized that violence does not have to be witnessed.
[55] Ultimately, however, the application judge found that while there may have been some form of domestic violence during the marriage, she was not prepared to accept the extent of the mother’s allegations.
[56] This conclusion was based largely on credibility findings. The application judge had the benefit of extensive documentation, and of hearing from the parties directly. She considered the allegations carefully. Her findings of fact and credibility are entitled to deference on appeal: Housen; F. v. N., at para. 75.
[57] I therefore see no basis to interfere with her conclusion.
d. The Father’s Criminal Conviction
[58] The mother submits that the application judge erred in her treatment of the father’s conviction for violence against the child. She asserts that the application judge minimized the criminal conviction, and, in so doing, erred in her application of the grave risk of harm exception set out in art. 13(b). The OCL supports this submission.
[59] The father asserts that the application judge did not err. He submits that the grave risk exception is to be interpreted narrowly, and that the application judge’s determination that the threshold was not met is entitled to deference. He emphasizes the application judge’s concerns about the mother’s credibility.
[60] In my view, while the application judge started from a position of comity, accepting the fact of the conviction, she erred in her assessment of its relevance to the prospective assessment of grave risk of harm.
[61] In cases such as this, the court should 1) start from the position of comity and respect for the conviction, 2) assess risk of harm prospectively and cumulatively to determine whether it reaches the “grave risk” threshold, and 3) give due consideration to evidence of mitigation or safety measures, either proposed, or implemented.
[62] Below I set out details of the conviction, how it was considered in the reasons, and I address each element of the required approach in turn.
Details of the conviction
[63] The child attended for parenting time with her father from August 1 to September 4, 2023. Following that visit, the mother made a formal complaint to the Moroccan authorities alleging that the father assaulted the child during that visit.
[64] On September 23, 2025, the Court of First Instance in Rabat convicted the father of “misdemeanour of assault and violence against a child under 15, pursuant to article 408 of the Penal Code”. The court stated that an expert report confirmed that the child suffers from “hemianopia in the right eye, swelling of the head, as well as physical changes and symptoms such as insomnia and increased nervousness accompanied by stuttering”, and that the child was currently undergoing psychiatric follow up and was continuing in speech therapy.
[65] The father testified. He denied the incident, stating that the allegations were fabricated and that the mother’s intention was to have him imprisoned.
[66] The Court of First Instance of Témara, Morocco, determined, on the evidence before it, that the father “knowingly and voluntarily” committed all elements of the offence charged, and was “therefore convinced that the accused is guilty”. The father was given a one-month suspended sentence and a fine. At the time the return application was heard, the father had appealed the conviction. We have not been advised whether the appeal has been decided.
The treatment of the conviction in the reasons
[67] The trial judge started from a position of comity. She considered the fact of the conviction and held that,
[T]he court accepts there is a conviction.
Despite hearing evidence that casts doubt on this conviction, this is an issue for the court of appeal in Morocco, not this court.
There is only one act of violence toward the child which resulted in a conviction and is certainly a serious matter.
However, I do not find that this rises to the level of posing a grave risk to the child or of placing her in an intolerable situation should she be returned to Morocco. This was an isolated incident and there was no history of the involvement of child protection or of injuries or previous violence against the child by the father.
[68] She also noted that there was no history of the involvement of child protection or of injuries.
[69] In concluding that there was no grave risk to the child, however, the application judge appears to have considered the conviction separately from other evidence relevant to grave risk of harm.
[70] The application judge addressed the prospect of the child’s separation from the mother, the primary caregiver, upon a return to Morocco, in isolation from the conviction. She stated that the court could not speculate about the outcome of any complaint by the father or the mother’s potential imprisonment. She held that any risk therefrom, in any event, arose after the abduction. The application judge found that while the child could face negative emotional consequences if separated from her mother, this also did not rise to the level of grave risk or an intolerable situation.
[71] The reasons, while otherwise comprehensive, do not discuss the child’s planned residential circumstances upon her return to Morocco, her prospects for a relationship with her mother going forward, any remedial steps taken by the father given the criminal conviction for violence against the child, or any planned protective or safety measures for her in Morocco. While the reasons set out numerous undertakings by the father, the court fairly recognized that they were not enforceable and simply documented the father’s stated intention. The court relied on the father’s statement that he did not intend to alienate the child from her mother.
The appropriate contextual consideration of the conviction
i. Comity as starting point
[72] Canadian courts respect the judicial determination of other countries, based on the principle of comity. That principle is “neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other.” Rather, “it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having regard to both international duty and convenience”: H.M.B. Holdings Limited v. Antigua and Barbuda, 2022 ONCA 630, at para. 38 citing Spencer v. The Queen, 1985 CanLII 4 (SCC), [1985] 2 S.C.R. 278 at 283, at p. 283. See also Morguard Investments Ltd. v. Savoye, 1990 CanLII 29 (SCC), [1990] 3 SCR 1077 at p. 1096; King v. Drabinsky, 2008 ONCA 566, at para. 10.
[73] As seen above, signatories to the Hague Convention can take comfort that all signatories are committed to the paramountcy of children’s interests, and, by design, have mutual confidence that this principle is implemented in judicial decision-making: Geliedan at para. 37. In my view, the principle of comity requires that such confidence be similarly extended to the integrity of criminal law decision-making.
[74] As indicated, the trial judge correctly accepted that the father had been convicted for assaulting the child, and that any frailties in the evidence were a matter for the Moroccan appeal court.
ii. Prospective and cumulative assessment
[75] In assessing whether the grave risk of harm threshold has been met in the context of a conviction for assault against the child, the focus should be on the prospective plan for the child upon return. The court should consider, for example, with whom the child will live, the extent to which the primary caregiver will be involved (if at all), and whether any third party(ies) will be assisting with the care of the child.
[76] As seen above, separation from a primary caregiver is itself a factor for consideration in the grave risk of harm analysis. Where a parent will not return with the child, the court must contemplate the child’s new placement and any harm likely to flow from it: Ojeikere, at para. 73. Here, the father’s conviction for assault against the child should have been considered in conjunction with the likelihood of the child’s separation from the mother.
[77] The experts agreed that the mother’s unmarried cohabitation could expose her to a criminal complaint based on article 490 of the Criminal Code, and if prosecuted, possible imprisonment. While the father undertook not to make a complaint that would increase the mother’s criminal exposure[5], the application judge recognized the lack of enforceability of the undertakings. In addition, as the application judge noted, at the time of the hearing there was an outstanding warrant for the mother’s arrest in Morocco related to the mother’s wrongful removal of the child. While this latter issue is the result of her own conduct in wrongfully removing the child, for the purpose of the forward-looking and child-centred assessment that the grave risk of harm analysis requires, the focus is the child’s prospective circumstances, not the “punishment” of the mother for wrongful conduct: F. v. N, at para. 70.
[78] The father’s chasing order made May 19, 2025, revoking the mother’s parenting rights, would be in effect upon the child’s return, thereby placing the child exclusively with him.[6] Further, the experts agreed that the mother’s unmarried cohabitation would very likely disentitle her to any parenting rights.
[79] On the evidence, upon a return of the child to Morocco, the prospects for the mother’s meaningful involvement in the child’s life from Canada are also low. The father told the OCL clinical investigator that if, as is likely, the mother remains in Canada, he would facilitate video calls, and permit parenting time “in a public location equipped with surveillance”. His affidavits do not address the mother’s future involvement with the child.
[80] The child’s near-certain separation from her primary caregiver was not a speculative concern. It should have been considered as part of the analysis of grave risk of harm in the context of the father’s conviction for assault against the child and the absence of oversight of the father’s parenting that the mother’s absence would entail.
iii. Mitigation/ Safety Measures
[81] Protective and/or mitigating factors can take many forms. Given the likely inability of the mother to return and remain with the child in Morocco, the court should have considered the possibility of other safeguards. These could include, for example, the regular involvement of nearby family members or friends, ongoing involvement of a counsellor or other professional for the child, or other similar protective measures. Also relevant are any steps that an offending parent has taken to address the concerning behaviour, such as counselling or courses in parenting, anger-management, and so on.
[82] Here, the father states in his affidavit sworn December 24, 2025, that he took several courses on the advice of his lawyer, including a four-hour anger management course and two short parenting courses. The certificates are dated days before he swore his affidavit. He provides no evidence of the content of those courses, the duration (other than the 4-hour course) or how they might shape his prospective parenting.
[83] The father did not disclose the then-pending criminal charge in Morocco when he swore his form 35.1 affidavit in support of his original Hague application.[7] As the application judge noted, he did not advise the family court in Morocco of his prior criminal charges when seeking the order granting him sole parenting rights to the child. In his closing submissions below, while categorically denying the assault against the child, he described the incident as resulting in a “minor baseless bruise.” He neither mentioned nor addressed his criminal conviction in his written submissions for this appeal. This is concerning from a mitigation perspective.
[84] The decision below does not mention the courses taken by the father or analyze whether they mitigated the risk posed by the fact of his conviction. It also does not address any practical safety measures for the child upon her return. The record includes evidence of the child’s paternal aunt and uncle who state that they are willing to assist the father. However, both live in other communities, some distance away. The aunt appears not to accept that the assault took place. It is unclear how they could offer additional safety or protection for the child.
Conclusion on the conviction and grave risk of harm
[85] The father’s conviction for assault of the child was proof that the assault occurred. In this context, the application judge was required to make a prospective and cumulative assessment of the risk inherent in the fact of the prior assault. This required considering both the barriers to the mother’s return and alternative protective and/or mitigating factors.
[86] Taking this approach, it is clear in all the circumstances of this case that returning the child to her father’s sole care, with the significant barriers to mother’s return, and the absence of mitigating factors, would expose her to a grave risk of harm. I would dismiss the father’s application to order the return of the child and order that Ontario has jurisdiction to determine decision-making and parenting time.
5. The Child’s Objection to Return
[87] The mother submits that the application judge erred in her treatment of the child’s objection to returning to Morocco. Supported by the OCL, she argues that the application judge imposed additional requirements to give effect to a child’s views and erred by failing to implement the child’s objections. The OCL emphasizes that a child’s right to be heard is fundamental, protected by the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and that the objection exception set out in art. 12(2) of the Convention embodies this right.
[88] I would not accept this submission.
[89] Article 13 of the Convention permits, but does not require, a court to refuse to order the return of the child if it finds “that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (emphasis added).”
[90] The OCL’s submissions fail to acknowledge the requirement of maturity clearly articulated in this exception. The OCL also overlooks that exceptions to return are just that: exceptions. The exceptions provide circumscribed and discretionary bases to refuse to order what would otherwise be the mandatory return of a child. They do not confer a general discretion on the application judge to decline return: Balev, at para. 76.
[91] Determining the maturity of a child is a fact-based inquiry, requiring a “common-sense approach”. This is generally a matter of inference from the child’s demeanor, testimony, and circumstances: Balev, at para. 78.
[92] The application judge meaningfully considered the views of this young child. She accepted that the child’s “true wishes” were to stay with her mother in Canada. She found that the child’s views were consistent and that there was no evidence that either parent had influenced her. The application judge reviewed decisions where the views of younger children had been a significant factor in a court’s decision not to return.
[93] At the same time, however, it is evident that the application judge found it inappropriate to implement the child’s views given her “age and degree of maturity”, as contemplated by art. 13(b). While the application judge recognized that there is no “minimum age” at which a child’s views may be given weight, she found that “[t]here is no evidence that [the child] is particularly mature beyond her young age” and expressed concern that the child did not fully appreciate the future consequences of a decision about returning to Morocco “as she [is] simply happy and content and bonded to her mother and her new living arrangements”. This did not impose additional requirements on the child. Rather, it recognized the requirement of maturity articulated in this exception and concluded that it was not satisfied. I see no reason to interfere.
6. The Child’s Pending Refugee Claim
[94] The mother tendered fresh evidence that she had applied for refugee status for the child and that as at the hearing of the appeal, the application was pending determination by the Immigration and Refugee Board of Canada (“IRB”). She provided evidence that she was advised against filing a refugee claim upon arrival in Canada and counselled to sponsor the child instead. Further legal advice suggested otherwise. Although the father was served with this proposed fresh evidence well in advance of the appeal, he did not seek to examine the mother or either of her immigration counsel (privilege clearly having been waived) before the appeal was heard.
[95] Immediately before the appeal was heard, the panel was advised that the child’s claim was determined to be eligible for consideration and had been referred to the IRB for consideration.
[96] The mother and the OCL submit that given this now-pending refugee application, the court should, following the principles set out in A.M.R.I. v. K.E.R., 2011 ONCA 417 and Kirby, decline to return the child. The OCL submits that a pending refugee claim is an additional basis upon which the court may find that the exceptions set out in art.13 or 20 of the Convention are made out. The OCL emphasizes that returning the child before the refugee claim is determined will violate the principle of non-refoulement and her claim will become moot.
[97] Given my conclusion that a return of the child would constitute a grave risk of harm based on the father’s conviction for assault against the child and related circumstances, it is not necessary to address the impact of the child’s pending refugee claim on the child’s possible return.
[98] I would however note the misplaced reliance on A.M.R.I. and Kirby for pending refugee claims. The rebuttable presumption discussed in A.M.R.I, at para. 74, and in Kirby, at para. 45, arises where a refugee determination has already been made. The impact of a pending refugee claim was analyzed by the court in in M.A.A.and further addressed in A.A. v. Z.S.M., 2025 ONCA 283.
V. Disposition
[99] I would allow the appeal. I would set aside the return order and declare that Ontario Courts have jurisdiction under s. 23 of the CLRA to determine decision-making and parenting time for the child. I would remit this matter to the Superior Court for the determination of interim and final decision and parenting time.
[100] I would award costs of the appeal to the mother in the agreed upon amount of $15,000 with no costs at first instance.
Released: August 17, 2026 “J.A.T.”
“L. Madsen J.A.”
“I agree. Thorburn J.A.”
“I agree. M. Rahman J.A.”
1This appeal is subject to a publication ban pursuant s. 166 of the Immigration and Refugee Protection Act.
2The order below was stayed, on the consent of the parties, pending the determination of this appeal.
3I will use the phrase “grave risk of harm” as a shorthand for the full expression of the exception under Article 13(b) of the Hague Convention, namely that, “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
4There is considerable overlap between caselaw under the Hague Convention interpreting and applying the “grave risk of harm” threshold and caselaw addressing the “serious harm” context of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). The Supreme Court’s decision in F. v. N., for example, a decision in the context of s. 23 of the CLRA, is also instructive here. Importantly, however, as endorsed in F. v. N. at para. 73, “[t]he s. 23 standard is less exacting than that of the Hague Convention”.
5The fresh evidence before this court reveals that the father has provided the decision below, which includes reference to the mother’s partner and her unmarried status, to the Moroccan court. While the parties disagree about the extent to which the father emphasized the mother’s living arrangements to that court, the information is undeniably now available to the Moroccan authorities.
6By the time this appeal was heard, the Moroccan appeal court had upheld the revocation of the mother’s parenting rights. The application judge did not have the outcome of this decision before her.
7Form 35.1 is a sworn document which requires the disclosure of any pending criminal charges as well as any criminal conviction for which the affiant has not received a pardon.