I. (A.M.R.) v. R. (K.E.)

105 O.R. (3d) 44

2011 ONCA 302

Court of Appeal for Ontario,

Cronk, Gillese and MacFarland JJ.A.

April 18, 2011

Family law -- Children -- Child making successful refugee claim in Canada based on abuse by her mother -- Mother applying under Hague Convention for order that child be returned to Mexico -- No conflict existing between s. 46 of Children's Law Reform Act (Hague Convention) and s. 115 of Immigration and Refugee Protection Act -- Motion judge erring in granting order without conducting meaningful risk assessment -- Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 46 -- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 115 -- Hague Convention on the Civil Aspects of International Child Abduction.

A child made a successful refugee claim in Canada based on abuse by her mother. An application by her mother under the Hague Convention on the Civil Aspects of International Child Abduction for an order that the child be returned to Mexico was granted. The child's father appealed.

Held, the appeal should be allowed.

There is no conflict between s. 46 of the Children's Law Reform Act (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act. In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. No meaningful risk assessment was conducted in this case.

APPEAL from the order of Czutrin J. of the Superior Court of Justice dated September 21, 2010 for the return of the child to Mexico.

Statutes referred to Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 46 [as am.] Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 115 Treaties and conventions referred to Hague Convention on the Civil Aspects of International Child Abduction [page45 ]

Jeffery Wilson and Chelsea Hooper, for respondent (appellant on appeal). Philip M. Epstein, Q.C., Aaron M. Franks, Daniella Wald and Michael Zalev, for applicant (respondent on appeal). Lucy McSweeney, Katherine Kavassalis and Caterina E. Tempesta, for Office of the Children's Lawyer. Urszula Kaczmarczyk and Jocelyn Espejo-Clarke, for Attorney General of Canada. Sean Hanley, for Attorney General of Ontario. Angus Grant, for intervenor Canadian Council for Refugees. Lorne Waldman, for intervenor United Nations High Commissioner for Refugees. Jacqueline Swaisland, for intervenor Canadian Civil Liberties Association.

[1] BY THE COURT: -- By order dated September 21, 2010 (the "Order"), [J.R.I.] was found to be wrongfully retained in Ontario and ordered to be returned to Mexico, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"). The Hague Convention application was brought by her mother.

[2] At the time the Order was made, [J.R.I.] was 13 years old. She had been living in Toronto, Ontario for approximately 21 months, during which she had made a claim for refugee protection by reason of abuse by her mother. She was found to be a Convention refugee by the Immigration and Refugee Board of Canada, Refugee Protection Division, on April 27, 2010.

[3] [J.R.I.] was taken back to Mexico on October 15, 2010.

[4] Her father appeals the Order. Because of the international and human rights aspects of this appeal, many others have participated, as parties or intervenors.

[5] The human dimensions of this appeal make its resolution urgent. The legal complexities demand otherwise. In the result, we have decided to release our decision, with only the briefest of reasons, at this time. Full reasons for judgment that address the many difficult legal issues that have been raised will follow.

The Question

[6] The ultimate question that must be resolved on appeal can be simply stated: did the motion judge err in ordering that [J.R.I.] be returned to Mexico? [page46 ]

The Answer

[7] Yes.

[8] The short reason for arriving at this answer is as follows. In our view, there is no conflict between s. 46 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (Hague Convention) and s. 115 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Properly interpreted, harmonious effect can be given to both.

[9] In applying the Hague Convention, the family court must conduct an appropriate risk assessment regarding the return of a child who has been found to be a refugee. As we will explain in the reasons that will be subsequently provided, no meaningful risk assessment was or could have been undertaken in the circumstances of this case at the time the motion was heard. As a result, the Order cannot stand; this court stands in the shoes of the motion judge.

[10] While the record before this court is much more extensive than that which was before the motion judge, in our view, the risk assessment cannot be done without viva voce evidence. Consequently, a new hearing must be conducted.

Relief

[11] Accordingly, we would allow the appeal, set aside the Order and direct that a new Hague Convention hearing be undertaken. The parties have attorned to this court's jurisdiction. We therefore direct the parties to do everything within their power to co-operate and facilitate [J.R.I.]'s return to Ontario to participate in the new hearing.

[12] We recognize that this leaves open the question of the care and supervision of [J.R.I.] if she is returned to Ontario before the new Hague Convention hearing can be convened. We also recognize that there are uncertainties at present regarding those steps necessary to effect [J.R.I.]'s return to Ontario. If necessary, the issue of Josette's care and supervision pending the determination of the new Hague Convention hearing shall be left to the discretion of the Office of the Children's Lawyer, in consultation with the appellant, the respondent and those of the other parties as may be advisable.

[13] For the sake of clarity and to ensure that there is no misunderstanding, we advise that additional relief and directions regarding the new hearing may be ordered when our full reasons for decision are released.

Appeal allowed.