Court of Appeal for Ontario

Date: August 26, 2025

Docket: COA-25-CV-516

Judges: Coroza, Madsen and Rahman JJ.A.

Between

Kirby Applicant (Respondent in Appeal)

and

Woods Respondent (Appellant)

and

X, The Child Respondent

Counsel

For the Appellant: Martha McCarthy, Meghan de Snoo and Nicole Burrows

For the Respondent Kirby: Meghann Melito, Michael Stangarone and Aria MacEachern

For the Respondent X, The Child: Caterina Tempesta, Renatta Austin and Cheryl Robinson

For the Intervener Canadian Association of Refugee Lawyers (CARL): Maureen Silcoff and Adam Bercovitch Sadinsky

For the Intervener United Nations High Commissioner for Refugees (UNHCR): Lorne Waldman, Charles Steven, Sumeya Mulla and Carla Arbelaez

For the Intervener Canadian Council for Refugees (CCR): Adrienne Smith, Alison Pridham and Asma Faizi

For the Intervener Immigration and Refugee Law Clinic (IRLC): Laura Best and Xilonen Hanson Pastran

For the Intervener Canadian Civil Liberties Association (CCLA): Prasanna Balasundaram and Asiya Hirji

Heard: July 4, 2025

On appeal from the judgment of Justice Catherine H. Rhinelander of the Superior Court of Justice, dated May 5, 2025.

Madsen J.A.:

A. Overview

[1] A wrongfully retained child was ordered back to her country of origin after Canada granted her refugee status. This court has held that there is a rebuttable presumption against the return of a child in these circumstances. The child had clearly and repeatedly objected to return. The two main issues on this appeal are: (1) was the rebuttable presumption applied? And, (2) was the evidence of the now 13-year-old child's objection to return to her country of origin properly considered?

[2] It is undisputed that the mother retained the child in Canada without the father's consent. She commenced a refugee application for herself and the child with the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board of Canada (the "IRB"). Shortly thereafter, the father applied under art. 12 of the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the "Hague Convention"), seeking the child's return. By the end of the Hague Convention hearing at the Superior Court of Justice, the RPD had found the child to be a Convention refugee. In making that determination, the RPD found that the child has a well-founded fear of persecution by her father and that her home country is unable or unwilling to protect her.

[3] The application judge articulated the rebuttable presumption against the return of a refugee child set out in A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, but nonetheless ordered the return of the child. She expressed serious concerns about the procedure followed by the RPD, including its treatment of the evidence. In the context of stated concerns about the mother's credibility, she held that she was not "bound" by the RPD decision. The application judge determined that the child would not be exposed to a grave risk of harm within the meaning of the Hague Convention. She rejected the evidence of the child's strong objection to return to her country of origin, finding that the child had been influenced by her mother.

[4] For the reasons set out below, I would allow the appeal. The application judge erred in determining that neither the grave risk of harm (art. 13(b)) nor child's objection (art. 13(2)) exceptions to mandatory return under the Hague Convention applied. In the circumstances, Ontario has jurisdiction to make parenting orders for the child under s. 23 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. This matter is remitted to the Superior Court before a different judge for a focused hearing on decision-making and parenting time. Temporary orders, set out below, are granted to ensure certainty and stability in the interim.

B. Background

[5] The mother and father are both citizens of another country (the "country of origin"). They were married in 2003, separated in 2015, and divorced in 2019. They have three daughters. X, who is the parties' youngest daughter, is the subject of the order under appeal. The mother and father exercised equal parenting time between 2015 and 2021, formalized by a court order in the country of origin.

[6] The mother alleges that her relationship with the father was physically, psychologically, and sexually abusive. She says that the father engaged in a pattern of coercive control, harassment and stalking that continued after their separation. X's older sister, Y, described her parents' relationship as abusive and volatile, and recalled an incident when her father put his hands on her mother's neck.

[7] The mother also alleges that the father was psychologically and verbally abusive over many years to all three children, in addition to being physically abusive to Y. Y described numerous incidents including: an occasion when her father attended at school, grabbed her by her shirt and lifted her up to his face, threatening to beat her with his belt; an occasion when he attached a belt to her school bag to remind her of his threats to beat her; and an incident when he retrieved a belt and hit her in the chest and leg area.

[8] In September 2021, an incident occurred between the father and Y, while X was in the next room. Y's evidence was that after becoming angry that Y had not cleaned up after herself in the kitchen, the father grabbed Y by the shirt and threw her up against the wall several times. She suffered cuts on her face and neck and bruising on her head and collarbone. Y and X each contacted their mother (X by Skype and Y on WhatsApp) immediately following the incident. Both children were removed from the father's care following a call to police. The police investigated, but no criminal charges were immediately laid. Police and medical records corroborated the incident. The father then had no contact with X until December 2023, when the court in the country of origin granted the father parenting time with X.

[9] The father denies all allegations of violence. An assessor reports the father explaining the September 2021 incident as him teaching Y how to take care of the home, by "sternly chastising" her.

[10] In January 2024, the father was arrested and charged in relation to the September 2021 incident. The charge was later withdrawn. His parenting time was increased in April 2024 to alternate weekends. Around this time, the mother married her current husband.

[11] On consent of the father, the mother came to Canada with her husband, X, and Y on July 4, 2024, for a vacation. They did not return to the country of origin on their scheduled return date. On August 1 and 7, 2024, the mother failed to attend family court in the country of origin and the court issued a bench warrant for her arrest, which continues to stand.

[12] On August 14, 2024, the mother filed a refugee claim in Ontario for herself, X, and Y.

[13] On September 17, 2024, the father brought an application under art. 12 of the Hague Convention and s. 40 of the CLRA, seeking the return of X. On September 23, 2024, the Office of the Children's Lawyer (the "OCL") was appointed to represent X. An OCL clinician interviewed X five times before the application was determined and several times thereafter.

[14] On October 7, 2024, the mother filed her answer, asking the Superior Court to exercise its jurisdiction over parenting time and decision making with respect to X, under s. 23 of the CLRA. She argued that the child would be at risk of serious harm if she returned to the country of origin. The mother conceded that the child's removal was wrongful pursuant to art. 3 of the Hague Convention but asserted that the exceptions under arts. 13 and 20 applied. She sought sole decision-making responsibility for the child and parenting time to the father consistent with the child's best interests, given the child's wishes and the risk of family violence. The mother asks the court to dismiss the father's application for the return of the child.

C. Procedure and Evidence

[15] After multiple case management appearances, the application was heard over ten days between November 4, 2024, and January 16, 2025, primarily on a paper record.

[16] The father tendered three affidavits in his own name, affidavits of the parties' oldest (now adult) child, his spouse, and another individual. The mother relied on two affidavits in her own name, as well as affidavits of her spouse and another individual.

[17] The application judge did not permit the mother or the OCL to cross-examine the father despite multiple requests by both.

[18] The father called two expert witnesses. Dr. M., a school psychologist, gave evidence about her interactions with the family between 2019 and 2023. She was qualified as a participant expert on consent. The OCL and the mother cross-examined her. S.M., a lawyer, was qualified to give expert evidence on the laws of the country of origin and the legal protections available to victims of domestic violence and child abuse. S.M. was not qualified to give evidence about the implementation and efficacy of those legal protections. The evidence on the voir dire was applied to the trial.

[19] The mother sought to call her own expert, A.W., to give evidence on domestic violence, gender-based violence in the country of origin, how systems in the country of origin respond, the court system, corruption, and the ability of the state to ensure the safety of women and girls. A.W.'s experience includes work on policy and education initiatives on gender-based violence and women's rights in the country of origin. The application judge found that A.W. was not a properly qualified expert based on her lack of legal training and her background as an activist and advocate.

[20] The OCL relied on an affidavit of Y, as well as two affidavits of the OCL clinician who had met with X five times before the start of the hearing.

[21] Submissions on the Hague application started January 6, 2025. On that day, the court was informed that the RPD had granted refugee status to X. Submissions were adjourned to January 9, 2025, and the RPD's decision made available to the parties.

[22] The hearing concluded January 16, 2025. The application judge's decision was released May 5, 2025.

D. Decision of the Application Judge

[23] The task for the application judge, as she framed it, was to determine:

a. whether there was a grave risk of harm that the return of X would expose her to physical or psychological harm or otherwise place her in an intolerable situation under art. 13(b) of the Hague Convention;

b. whether X objected to being returned and had attained an age and degree of maturity such that the court should account for her views under art. 13(2) of the Hague Convention; and

c. whether the return of X would impact the fundamental principles of Canada relating to the protection of human rights and fundamental freedoms, within the meaning of art. 20 of the Hague Convention.

[24] The application judge held that the exceptions set out in arts. 13(b), 13(2), and 20 of the Hague Convention did not apply, granted the father's application, and ordered the return of the child (with a 14 day stay of execution).

[25] She acknowledged that the refugee determination created a rebuttable presumption of grave risk of harm, but expressed serious concerns about the RPD procedure and evidentiary thresholds, calling the process "completely one-sided." Instead, she accepted the father's expert evidence of "legislative provisions and policing in place to address intimate partner and domestic violence, as well as private and public agencies to assist women and children subjected to abuse." Despite the RPD determination, she concluded that this evidence "contradicts the mother's claims of lack of services and protections from the court and is further compounded by her failure to seek assistance from the courts [in her home country]." She also noted inconsistencies in the mother's evidence about the alleged abuse. While the application judge acknowledged that even one incident of violence may have a serious impact on children, she was satisfied that it was "highly unlikely" that the violence would reoccur; that the violence to date was not life threatening; and that the father would abide by the laws in the home country.

[26] In considering whether an exception to return under art. 13(2) was available, the application judge rejected the OCL's position that the child was "old enough and mature enough to be the deciding factor in her return", finding instead that she had been influenced by her mother.

[27] Finally, the application judge was not convinced to exercise her discretion under art. 20 of the Hague Convention based on "the fundamental principles [of Canada] relating to the protection of human rights and fundamental freedoms". She reiterated that she was satisfied on the evidence before her that, contrary to the RPD determination, the child would not be subjected to human rights violations upon return. She based this decision on "the fact that the IRB only heard the Mother's evidence, and that it relied on evidence that was inadmissible." In her view, "[t]his Court, unlike the IRB, benefited from a more fulsome evidentiary record".

E. Positions of the Parties

(1) The Mother's Position

[28] First, the mother argues that the application judge fundamentally misunderstood the refugee determination process, resulting in a failure to properly apply the rebuttable presumption against the return of a refugee child. She relies on the Supreme Court of Canada's decision in Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, to assert that the presumption remained valid until it was displaced by clear, credible, and case-specific evidence suggesting that the original risk no longer existed. The mother asserts that, in failing to give proper effect to the presumption, the application judge allowed the father to avoid his evidentiary burden entirely.

[29] Second, the mother raises several procedural concerns. She argues that the application judge's refusal to hear oral evidence, other than the father's expert, resulted in several legal errors, including: treating certain unresolved evidentiary questions as resolved; speculating about evidence; and failing to make required determinations about the alleged violence. In addition, the mother alleges that the application judge erred in finding the mother's proposed expert evidence inadmissible and in subjecting the mother's evidence to exacting scrutiny while uncritically accepting the father's evidence.

[30] The mother raised two additional issues in her factum: whether the application judge erred in bifurcating the conditions of return and making those orders without evidence; and whether the application hearing or its outcome offended the mother and child's rights under s. 7 of the Canadian Charter of Rights and Freedoms. Neither additional argument was vigorously pursued in oral argument.

(2) The OCL's Position

[31] The OCL argues that the application judge failed to properly apply the rebuttable presumption of risk of harm as set out in A.M.R.I. It submits that this court has provided clear direction in M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, at para. 77, leave to appeal refused, [2020] S.C.C.A. No. 402, that a refugee determination creates a presumption that a child will "with some certainty" suffer serious harm if returned (emphasis in original). The OCL submits that, despite this direction, the application judge minimized the abuse and failed to recognize that harm, as set out in F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, at para. 70, must be considered from a child-centred perspective. Further, the OCL asserts that the application judge erred in law in her characterization of the grave risk of harm test itself by failing to apply the standard articulated by the Supreme Court in Thomson v. Thomson, [1994] 3 S.C.R. 551, and Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, and instead relying on an elevated standard set out in lower court decisions.

[32] The OCL also argues that the application judge erred in her treatment of the child's strong objection to return. First, it submits that the application judge unreasonably relied on an inadmissible and flawed custody and access report rather than properly considering evidence of the OCL clinician who had met with the child on numerous occasions. The OCL states that the finding that the child was influenced by the mother is simply not supported by the evidence. Second, the OCL argues that the application judge failed to give due weight to the child's views as required by a plain reading of art. 13(2) of the Hague Convention.

(3) The Father's Position

[33] The father argues that the rebuttable presumption was applied. He argues that it is not necessary to show that there has been a change in circumstances since the RPD determination to rebut that presumption. It was open to the application judge to rely on the evidentiary record before her rather than defer to the RPD determination to find no grave risk of harm to X. He says the mother's allegations of abuse were vague, historic, and unsubstantiated by the evidence.

[34] The father also argues there was no error in declining to hear oral evidence since Hague proceedings are intended to be expeditious and, he submits, the OCL and the mother's requests came late. Nor did the application judge err in refusing to admit the mother's proposed expert evidence for her stated reasons. Finally, the father states that the application judge properly assessed the child's objection to return as improperly influenced by her mother.

F. Positions of the Interveners

[35] Five organizations were granted leave to intervene. I discuss each intervener's position briefly, incorporating relevant elements into the analysis that follows.

(1) United Nations High Commissioner for Refugees ("UNHCR")

[36] The UNHCR submits that a decision to return a refugee child under the Hague Convention can only be made where consistent with the state's non-refoulement obligations. Under Németh and A.M.R.I., a Hague application judge must assess the existence and extent of any persisting risk of persecution faced by the child. The child may only be returned if there is new evidence at the Hague hearing demonstrating, on a balance of probabilities, that the risk does not persist.

(2) Canadian Association of Refugee Lawyers ("CARL")

[37] CARL submits that where the government has designed a specialized process for determining refugee claims, a high degree of deference to the tribunal is required, pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. To the extent that there are differences in the procedures and treatment of evidence as compared to a court, these are accounted for in A.M.R.I.'s articulation of the rebuttable presumption. Further, the IRB has specialized policies to address claims based on alleged gender-based violence and expertise in assessing child refugee claims. CARL proposes a framework for implementing the rebuttable presumption.

(3) Immigration and Refugee Legal Clinic ("IRLC")

[38] The IRLC highlights the legal framework, policies, and practices governing the admissibility and treatment of evidence at the IRB. In particular, the IRLC outlines the applicable legal burdens and standard of proof in the refugee determination process, admissibility and weighing of evidence, treatment of unsolicited evidence, role of expert evidence, and applicable presumptions. In addition, IRLC describes the availability and content of National Documentation Packages ("NDPs").

(4) Canadian Council for Refugees ("CCR")

[39] CCR outlines the individualized risk assessment before the RPD, procedures followed where child abduction is a live issue and the Minister has intervened, the appointment and function of a Designated Representative ("DR") for child refugee claimants, and the guidance available to RPD decision makers in the Chairperson's Guidelines.

(5) Canadian Civil Liberties Association ("CCLA")

[40] CCLA makes two arguments. First, CCLA argues that the removal of a child to their country of origin is barred once a positive refugee determination is made. Such return will always constitute refoulement, which offends principles of fundamental justice under s. 7 of the Charter. Alternatively, CCLA argues that a revised, Charter-compliant framework is required for assessing grave risk of harm under art. 13(b) of the Hague Convention.

G. New Evidence and Admissibility

[41] All parties seek to have new or fresh evidence admitted.

[42] The test set out in Palmer v. The Queen, [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, at para. 4. As set out in M.A.A., 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".

[43] I have admitted and considered only the "new" evidence, namely the affidavit of the OCL clinician, sworn May 13, 2025, which discusses interviews with X after the application judge's decision was released. The balance of the evidence sought to be tendered on appeal does not bear directly on the child's best interests and so does not meet the test set out in Barendregt.

H. Analysis

[44] I address the following three issues below:

a. The "rebuttable presumption" of risk of persecution, in the context of the grave risk of harm analysis under art. 13(b) of the Hague Convention;

b. The appropriate treatment of a mature child's objection to return under art. 13(2) of the Hague Convention; and

c. The applicable remedy – assumption of jurisdiction under the CLRA.

(1) Refugee Status, Grave Risk of Harm and the Rebuttable Presumption

[45] A.M.R.I. establishes that when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence. In my view, this rebuttable presumption was not applied in this case.

(i) The Hague Convention and Grave Risk

[46] The Hague Convention is implemented as part of Ontario's domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are "(1) to treat the interests of children as paramount in matters relating to their custody; (2) 'to protect children internationally from the harmful effects of their wrongful removal or retention'; and (3) 'to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access'": A.M.R.I., at para. 47, citing the preamble of the Hague Convention.

[47] To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child's habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA "starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child's best interests."

[48] The mandatory return requirement under the Hague Convention is subject to limited exceptions, including, at art. 13(b), where there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

[49] The governing case on the meaning of grave risk of harm within the Hague Convention is Thomson. In that case, the Supreme Court held that to constitute grave risk, the risk must be weighty and substantial, and must place the child in an intolerable situation: at p. 597. The word "grave" modifies the "risk" and not the "harm": Thomson, at p. 596. The assessment must be undertaken from a child-centred perspective: Thomson, at p. 597. Stated otherwise, this defence to return will only be met in "situations that an individual child should not be expected to tolerate": F. v. N., at para. 73, as cited in Osaloni v. Osaloni, 2023 ABCA 116, at para. 12. This is a high threshold: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 37, 40. Consistent with the objectives of the Hague Convention, the threshold does not require that children be "pushed beyond the limits of endurance": Landman v. Daviau, 2012 ONSC 547, 17 R.F.L. (7th) 332, at para. 103, aff'd Husid v. Daviau, 2012 ONCA 655, 298 O.A.C. 182, leave to appeal refused, [2012] S.C.C.A. No. 485.

[50] The grave risk threshold may be met by the actions or pattern of behaviour of a parent, with or without physical violence against a child. In Pollastro v. Pollastro (1999), 43 O.R. (3d) 485 (C.A.), this court held that a continued pattern of escalating abuse, combined with threats against the mother and her family were sufficient to create an intolerable situation for the child, where the child had not, himself, been physically abused by the father: see also Husid.

(ii) The Refugee Convention and Non-Refoulement

[51] The rebuttable presumption of grave risk of harm upon return of a refugee child to her home country aligns with Canada's international refugee obligations. These obligations are set out in the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the "Refugee Convention"), ratified by Canada in 1969. The primary purpose of the Refugee Convention is to "assure refugees the widest possible exercise of … fundamental rights and freedoms": Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 72, citing the Refugee Convention preamble; see also A.M.R.I., at para. 53.

[52] Where an individual is a Convention refugee, they have been found – by the tribunal designated to make that determination – to have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", to be "outside the country of his nationality", and to be "unable, or owing to such fear, unwilling to avail himself of the protection of that country": Refugee Convention, art. 1A(2); see also Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96. The threshold is a "'reasonable chance', a 'reasonable' possibility, or a 'serious possibility'" of persecution: Németh, at para. 98.

[53] The Refugee Convention prohibits the return of refugees. Specifically, art. 33 of the Refugee Convention codifies the principle of non-refoulement, which obligates contracting states not to "expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened". As this court stated in A.M.R.I., at para. 55, "[t]he centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated." This principle is considered "the cornerstone of the international refugee protection regime": A.M.R.I., at para. 55, citing Németh, at paras. 18-19; see also Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 108.

[54] The principle of non-refoulement is codified in s. 115(1) of the IRPA, which provides:

A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

[55] Refugee status is a point-in-time determination that an individual faces a well-founded fear of persecution. It is not an immutable characteristic. As stated in Németh, at para. 50, citing refugee scholar James Hathaway: "refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings…. '[I]t is one's de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status'".

[56] Thus, the rights flowing from an individual's situation as a refugee are temporal, in the sense that the person is a refugee while the risk exists but ceases to be a refugee when the risk ends: Refugee Convention, art. 1(C). In that sense, the return of an individual who was but is no longer at risk within the meaning of the Refugee Convention, does not constitute refoulement: Németh, at para. 103.

(iii) The Canadian Refugee Determination System

[57] The contemporary Canadian refugee determination system was created following the Supreme Court's landmark decision in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, which held that the importance of the rights engaged in the refugee determination process requires a procedure in line with the principles of fundamental justice. To determine refugee claims, the RPD is generally required to hold a hearing: IRPA, s. 170; Refugee Protection Division Rules, SOR/2012-256, r. 23.

[58] The RPD is mandated to determine refugee claims under the IRPA, and, pursuant to s. 162(1) of the IRPA, has sole and exclusive jurisdiction to hear and determine all questions of fact and law on proceedings brought before it. The Supreme Court has described the IRPA as "a parallel justice system established alongside courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims" in the immigration context: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, at para. 28. As stated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 47, "the expertise of the [IRB] is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin."

[59] Refugee determinations are made by independent decision makers mandated to act impartially: Kozak v. Canada (Minister of Citizenship and Immigration), 2006 FCA 124, [2006] 4 F.C.R. 377, at paras. 52-57. The Canadian refugee determination process is robust, specialized, and tailored to the unique circumstances in which refugee claims are brought: A.M.R.I., at para. 72; Singh v. Canada (Citizenship and Immigration), 2022 FC 339, at para. 32.

[60] By design, the refugee determination process is different from the court process. The model is generally non-adversarial, and the role of the decision maker is more inquisitorial than in a traditional court process: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 29. The claimant typically gives oral evidence and may tender documents and call witnesses. The decision maker may actively question the claimant: see Olah v. Canada (Citizenship and Immigration), 2019 FC 401, 66 Imm. L.R. (4th) 299, at paras. 24-25.

[61] Unless confidentiality is waived by the refugee claimant, documentary record before the RPD and the RAD is confidential: IRPA, s. 166; see e.g., Mabrouki v. Canada (Minister of Citizenship and Immigration), 2003 FC 1104, 242 F.T.R. 171, at para. 5; see also UNHCR, Asylum Processes (Fair and Efficient Asylum Procedures), Global Consultations on International Protection, EC/GC/01/12 (31 May 2001), at para. 50. The presumption of confidentiality exists to protect refugee claimants and their families from alleged persecutors, be they states, organizations, or individuals.

[62] Child claimants are parties in their refugee claim: RPD Rules, r. 1. Claims of family members are typically joined together: RPD Rules, r. 55. However, the assessment of refugee claims is individualized; one family member could be found to be a Convention refugee where another family member is not: IRPA, ss. 96-97, 107; see e.g. Vartia v. Canada (Citizenship and Immigration), 2023 FC 1426, at para. 22.

[63] Child refugee claimants are represented by a designated representative (DR), whose role is to ensure that the child's best interests are protected during the hearing: IRPA, s. 167(2); RPD Rules, r. 20(10). In some cases, the DR is the child claimant's parent, so long as their interests do not conflict with those of the child claimant: see IRB, Designated Representative Guide, s. 2.2; Bukvic v. Canada (Citizenship and Immigration), 2017 FC 638, at para. 18. The RPD will typically appoint a third-party DR where there are allegations of abduction: see e.g., X (Re); X (Re).

[64] In some cases where the alleged persecutor is a spouse or former spouse, there is a risk that the refugee determination system may be abused, since the alleged persecutor is not entitled to notice of or participation in the hearing: A.M.R.I., at para. 73. Specifically, an abducting parent may seek to advance what are essentially family law or immigration goals through the refugee process.

[65] That said, the refugee determination process includes multiple safeguards to address the potential tactical use of the refugee system by an alleged child abductor. Where there is a possibility that a claim involves an abducted child, art. 1F(b) of the Refugee Convention applies. That article excludes persons from holding refugee status for whom there are "serious reasons for considering that … [they have] committed a serious non-political crime outside the country of refuge". This article is recognized in s. 98 of the IRPA. Further, the Basis of Claim form requires disclosure of any document authorizing consent to travel with the child, which – whether the claim is made inland or at a port of entry – may trigger notice to the Minister. The RPD Rules also require RPD members to notify the Minister in all claims involving a child where the parent or child lacks custody or consent documents: r. 26(2). When the Minister intervenes, the hearing becomes adversarial. If the Minister shows a serious reason for considering that the parent has abducted the child without an applicable defence, the refugee claim will fail. The Minister may choose to intervene at any stage.

[66] To provide context for the rebuttable presumption against the return of a refugee child, which is discussed further, below, I set out the following basic evidentiary principles in a refugee hearing:

a. The burden is always on the claimant, on a civil standard, to show they have a well-founded fear: The Minister of Citizenship and Immigration v. Flores Carrillo, 2008 FCA 94, [2008] 4 F.C.R. 636, at paras. 17, 20 and 38.

b. States are presumed capable of protecting their citizens; to rebut the presumption requires "clear and convincing" evidence: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pp. 724-26; Flores Carrillo, at para. 38.

c. A claimant must establish that their subjective fear of persecution is objectively well-founded: Ward, at pp. 712, 723; Canada (Citizenship and Immigration) v. Munderere, 2008 FCA 84, 291 D.L.R. (4th) 68, at para. 36, leave to appeal refused, [2008] S.C.C.A. No. 187.

d. If the Minister is alleging grounds to exclude, such as on the basis of alleged child abduction, he bears the burden of proof; the threshold is "serious reason for considering", which is lower than a balance of probabilities but higher than "mere suspicion": IRPA, s. 98; Refugee Convention, art. 1F(b); Quintana Murillo v. Canada (Citizenship and Immigration), 2008 FC 966, 333 F.T.R. 149, at para. 24; Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1204, at para. 12, citing Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, 229 D.L.R. (4th) 235, at para. 174.

e. The RPD may receive evidence that it considers "credible or trustworthy in the circumstances": IRPA ss. 170(g)-(h).

f. Although hearsay may be admissible, corroborative evidence may be required to ensure its trustworthiness: Senadheerage v. Canada (Citizenship and Immigration), 2020 FC 968, [2020] F.C.R. 617, at paras. 36, 41.

g. The decision maker may take notice of facts that may be judicially noticed, as well as generally recognized facts and information or opinion within the specialized knowledge of the tribunal: IRPA, s. 170(i); see e.g., Posluszny v. Canada (Minister of Citizenship and Immigration), 2004 FC 1085, at para. 9.

h. Unsolicited information may be considered by the RPD, if it can be adequately tested. It must be from an identifiable informant who agrees to disclosure to all parties: RPD, Policy on the Treatment of Unsolicited Information in the Refugee Protection Division, No. 2015-02, effective October 26, 1998, updated April 20, 2016; Reyes Pino v. Canada (Citizenship and Immigration), 2012 FC 200, 405 F.T.R. 157, at para. 38.

i. The claimant's fear must be assessed based on "what is generally known about conditions and laws in the claimant's country of origin, as well as the experiences of similarly situated persons in that country": Odetoyinbo v. Canada (Citizenship and Immigration), 2009 FC 501, at para. 8.

j. The IRB creates National Document Packages (NDPs) to support the RPD in its decision-making process. NDPs are a standard source of country-of-origin evidence considered in assessing a refugee claim. NPDs are updated regularly, contain extensive, sourced, country documentation, and are agnostic as to the outcome of any claim. Decision makers may request additional country-of-origin research as required.

k. Expert witnesses may be permitted to testify before the RPD, but given the extensive NDP packages, they are often not required: RPD Rules, r. 44(1); see Kozak, at para. 26.

l. In determining whether state protection is available to a claimant, the decision maker considers "the adequacy of that protection at the operational level, not the efforts or intentions of the state": Burai v. Canada (Citizenship and Immigration), 2020 FC 966, at para. 25. Legislation on its own is insufficient to ground a finding of state protection; the focus must be on the existence of an actual outcome of protection: Burai, at para. 25.

m. Where the Minister intervenes, he does so as a party, with full rights to cross-examine, call evidence and make submissions: RPD Rules, rr. 1, 29.

[67] Under s. 169(b) of the IRPA, RPD decision makers must provide reasons for decisions. Those reasons must be transparent, intelligible, and justified: Vavilov, at para. 15; Mason, at para. 59. Decisions of the RPD may be appealed or subject to judicial review, with leave: IRPA, s. 110. Neither the Ontario Court of Justice nor the Ontario Superior Court sit in appeal of a refugee determination.

(iv) The Intersection of Grave Risk and Canada's Non-Refoulement Obligations

[68] This court first grappled with the intersection of refugee status and the Hague Convention in A.M.R.I. The approach taken therein was confirmed more recently in A.A. v Z.S.M., 2025 ONCA 283. In A.M.R.I., the court relied on the Supreme Court's decision in Németh to conclude that, "a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child": at para. 78.

[69] Németh, decided in the extradition context, determined that that if s. 44(1) of the Extradition Act, S.C. 1999, c. 18, is properly applied, there will be no breach of the non-refoulement principle in the removal of an individual who has been found to be a Convention refugee. Section 44(1) of the EA, like s. 115(1) of the IRPA, gives effect to Canada's non-refoulement obligations. While s. 115 of the IRPA does not preclude extradition, Cromwell J. stressed, at para. 58 of Németh, that where a person has been found to be a refugee, the exercise by the Minister of Justice of his power of surrender must "give sufficient weight or scope to Canada's non-refoulement obligations in light of which those powers must be interpreted and applied". He explained at para. 105:

[M]y view is that where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement, that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution.

[70] Németh contemplates two circumstances in which a removal of a person found to be a Convention refugee would be permissible. Notably, nothing in Németh, other than as set out below, suggests that a court considering return should go "behind" the refugee determination itself.

[71] First, Németh instructs that where the Minister is considering the removal of a refugee, a forward-looking risk assessment should be undertaken to determine whether the risk that led to the refugee determination persists. The burden to show otherwise is on the Minister, not the claimant. A "change of circumstances" in a refugee's country of origin may lead to the cessation of refugee protection, without the need for a formal revocation of refugee status: see paras. 103-7, 114. Refugee status is "temporal," as discussed above; accordingly, if the risk is no longer present, the person ceases to be a refugee, and there is no refoulement upon return.

[72] Second, Németh also identifies vitiating circumstances that may come to light after a refugee determination is made. These could include evidence that refugee status was obtained through misrepresentation or withholding material facts. Again, the burden is on the Minister, not the refugee: at para. 110.

[73] In A.M.R.I., this court determined that the Hague Convention also contemplates respect for Canada's non-refoulement obligations: A.M.R.I., at para. 68. Like s. 44(1) of the EA, art. 13(b) of the Hague Convention "must be construed in a manner that takes account of the principle of non-refoulement": A.M.R.I., at para. 68. This, the court held, ensures compliance with Canada's treaty obligations: A.M.R.I., at para. 69.

[74] Accordingly, when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence that engages the grave risk of harm exception: A.M.R.I., at para. 74.

[75] While noting the differences between court and IRB procedure and treatment of evidence, and reminding judges to be alert to any apparent attempt to misuse the refugee system, this court in A.M.R.I. directed at para. 74, that:

[W]hen a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence. A risk of "persecution" in the immigration context clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention. [Emphasis added.]

[76] Further, in articulating the presumption, this court in A.M.R.I. emphasized the deference to be shown to the decision of the IRB on a refugee claim, stating at para. 72:

What, then, is the significance of an IRB refugee determination on a Hague Application? In order to grant a refugee claim, the IRB must be satisfied, on a balance of probabilities, based on evidence that it regards as trustworthy and reliable, that a refugee claimant faces a reasonable chance of persecution. Given its expertise and specialized knowledge, the decisions of the IRB on fact and credibility-driven issues are accorded a high degree of deference by the courts…. [Citations omitted.]

[77] Relying further on Németh, this court in A.M.R.I. stated that in implementing the presumption, "there should be no burden on the child who has refugee status to persuade the application judge that 'the conditions which led to the conferral of refugee protection have not changed'": at para. 78, citing Németh, at para. 106.

[78] In my view, based on both Németh and A.M.R.I., and recognizing the "high degree of deference" to be shown to IRB decisions, the rebuttable presumption requires the following of a judge hearing a Hague application:

a. A court must not categorically dismiss the IRB's refugee determination process due to differences in procedure and evidentiary standards that have been specifically designed for the unique functions of that tribunal. The A.M.R.I. framework accounts for those differences in the articulation of the presumption;

b. Courts should, in general and subject to (c), below, respect and defer to determinations of fact and credibility made by the tribunal and resist engaging in a reweighing of evidence considered in the refugee determination process;

c. Recognizing that refugee determinations are typically oral hearings while Hague applications tend to be summary procedures without oral evidence, a court with serious doubts about fact and/or credibility findings of the RPD in a specific case should give due consideration to permitting oral evidence and cross-examination;

d. Courts should respect and defer to the expertise of the IRB in assessing country conditions, the ability of the state to protect, and the assessment of internal flight alternatives. These are issues squarely within the expertise of the tribunal. Absent serious doubts about the analysis or findings of the RPD, courts should be cautious in permitting evidence to be called that attempts to undermine or re-visit the conclusion of the tribunal on these issues. Where, as here, such evidence has been called before the refugee determination is known, this evidence should be revisited in light of the refugee determination and given appropriate weight, recognizing the RPD's expertise. The evidence of a single expert, in general, would be unlikely to override conclusions reached by the RPD based on the extensive documentation in the applicable NDP.

e. In considering whether to return a refugee child, the non-refoulement obligation requires an assessment of whether risk persists; this is a forward-looking analysis based on changed circumstances in the country of habitual residence, with no onus on the refugee: Németh, at paras. 106-7, 111 and 114.

f. To go behind the refugee determination itself would require case-specific evidence of misrepresentation or withholding of facts before the RPD: Németh, at paras. 108, 110. A court ought not embark on enquiry into the validity or integrity of the refugee determination absent serious doubt about the findings, analysis, and conclusions of the RPD on the facts before the court.

g. So long as the refugee proceeding is protected by the IRPA's confidentiality provisions, the refugee claimant need not but may disclose documents prepared for or relied on in the refugee determination process in the Hague application. Recognizing the confidentiality protections inherent in the refugee determination process, it will be rare that a Hague application judge, without oral evidence, draws an adverse inference or negative credibility determination based on a refugee claimant's choice not to produce such documents.

(v) Application to this Case

The Refugee Process and Determination

[79] In this case, the RPD found X, her sibling Y, and the mother to be Convention refugees on January 9, 2025.

[80] The RPD hearing included oral testimony. The mother testified, as did the sibling Y. The DR testified for X. The mother was cross-examined. The decision maker found that the claimants were credible witnesses and gave the corroborative police and medical reports substantial weight.

[81] The RPD also considered the NDP, which included numerous "sourced" documents about legal protections and local implementation of those protections in the country of origin. The decision maker also considered and applied the Child Guideline, the Gender Guideline, and Chairperson Guideline 8: Accessibility to IRB Proceedings – Procedural Accommodations and Substantive Considerations.

[82] The RPD declined to hear from the father or the sibling remaining in the country of origin but considered some of the unsolicited evidence sent by the father. The RPD did not accept documents in relation to a family court proceeding in the country of origin.

[83] From the outset it was clear that "child abduction" and thus potential exclusion from refugee status under art. 1(F)(b), was a live concern before the RPD. The Minister intervened on the issues of exclusion and credibility. The refugee hearing was thus adversarial, contrary to the application judge's suggestion that it was "one-sided". The RPD decision maker found that while the child had been abducted by the mother, the mother had provided sufficient, substantial, and credible evidence to show that the defence of imminent harm applied and that she was therefore not excluded from refugee protection. The analysis of the RPD on this issue is detailed and extensive.

[84] The RPD decision maker concluded that the claimants, including X, faced a serious possibility of gender-based persecution by the father; that the state was unwilling or unable to protect them from that persecution; and that, given the small size of the country there was no internal flight alternative.

[85] At the start of the Hague application, it was the mother's burden to show that an exception to the return of the child applied under arts. 13(b) or 13(2).

[86] Following the refugee determination, the onus shifted to the father to rebut the presumption of grave risk of harm. While the application judge correctly articulated the presumption, she did not apply it. She stated:

I have difficulty reconciling that a rebuttable presumption is created by the findings of a tribunal that relies on a lower evidentiary threshold including hearsay, unsourced documentary materials, and is completely one-sided. In other proceedings that have come before the courts, the materials relied upon at the refugee hearing had been filed with the court on the Hague application or at a minimum, disclosed to the parent requesting the return of the child. The mother in these proceedings refused to disclose anything, even when served with a Request for Information well in advance of the confidentiality order made in the IRB proceedings. While a rebuttable presumption has arisen due to the IRB findings, I am not bound by its decision and rely on the evidence before me.

The mother created a one-sided forum that was less fulsome and incomplete and failed to include information and evidence that clearly contradicted portions of her version of events. It is unclear what evidence was before the IRB, but it is safe to conclude that the evidence of [S.M.] was not. I make this finding as her evidence is not referred to in the IRB decision and it contradicts much of the mother's testimony regarding the services and protections of the state and the courts in [the country of origin].

I have expressed my concerns about the conclusions reached by the IRB in making its decision, the fact that the IRB only heard the mother's evidence and that it relied on evidence that was inadmissible. This court, unlike the IRB, benefitted from a more fulsome evidentiary record to assess what harm, if any, would result if the child were returned to [the country of origin]. The IRB determination is not determinative of the analysis. [Citations omitted.]

[87] The application judge's reasons suggest that she went behind the presumption, questioning the process before the RPD, rather than finding that the presumption of grave risk of harm was rebutted in the specific circumstances of this case.

[88] The application judge reviewed the mother's allegations, setting out concerns with her credibility and the reliability of her evidence. She identified what she found to be inconsistencies between the mother's version of a particular incident and that of the child Y. She determined that the mother embellished and exaggerated. Importantly, she made these credibility findings without any oral testimony from the mother. All of the parties' evidence in chief was by affidavit. The parties were not cross-examined either out of court or during the hearing.

[89] While the application judge accepted that there had been violence against the mother and that there was evidence of physical violence against Y, and while she rejected the father's denials, she found that the risk that the conduct would be repeated was "highly unlikely". She noted that the father had taken anger management and counselling. She found that the abuse was not "life threatening", thereby applying a higher threshold than the "grave risk of … physical or psychological harm" articulated under the Hague Convention and set out in Thomson. She also found, contrary to the far-more-thoroughly-sourced IRB's country-of-origin evidence, that the father could be controlled by the justice system in the country of origin.

[90] Based only on the testimony of the father's expert about legislative protections, but without expert evidence regarding the operational availability of those protections "on the ground" (and rejecting the mother's testimony regarding her repeated failed attempts to avail herself of those protections), the application judge concluded that the country of origin offered protections to victims of domestic violence. She stated:

The above evidence demonstrates that [the country of origin] has legislative provisions and policing in place to address intimate partner violence and domestic violence, as well as private and public agencies to assist women and children subject to abuse. This evidence contradicts the mother's claims of lack of services and protections from the court and is further compounded by her failure to seek assistance from the courts in [the country of origin].

On this basis alone, I am satisfied that the father has rebutted the presumption of a grave risk of harm if [X] is returned to [the country of origin]. [Emphasis added.]

[91] I recognize that when a Hague application unfolds in real time, it is not always clear how best to proceed, given the imperative under r. 37.2(2) to proceed expeditiously and the intended summary nature of the process. In this case, the refugee determination took place on the eve of closing submissions when numerous decisions had already been made about cross-examination, expert qualification, and the like. That said, there are difficulties with how the presumption was discussed and applied in the decision under appeal.

[92] First, it is clear from the excerpted portions of the decision, set out above, that the application judge did in fact categorically dismiss the RPD process and decision, notwithstanding the high degree of deference required by A.M.R.I.

[93] The RPD decision maker made extensive findings of fact and credibility related directly to the allegations of violence against the mother and Y in the country of origin, and X's significant fear of her father. Specifically, the RPD decision maker found that the mother had survived decades of intimate partner violence at the hands of the father and that X had lived in fear of her father from at least the time she witnessed the September 2021 incident.

[94] Notwithstanding that the RPD decision maker had the benefit of oral evidence while the Hague application judge did not, the application judge essentially reweighed evidence and matters bearing on credibility to reach her own assessment. Such reweighing, especially without the benefit of oral testimony and cross-examination, cannot be said to reflect deference or respect for the expertise and experience of the tribunal.

[95] Both the mother and the OCL repeatedly requested permission to cross-examine during the Hague hearing. The OCL went so far as to prepare a detailed chart setting out the issues requiring cross-examination. The OCL first made the request by motion in October 2024, well in advance of the hearing. Given the summary nature of Hague applications generally, it was open to the judge to initially decline those requests. However, once the RPD decision was released, the rebuttable presumption required her to permit cross-examination before rejecting the RPD's findings. Instead, the RPD decision, made with the benefit of oral evidence, was dismissed based on misunderstandings about the refugee determination process and without the benefit of additional oral testimony and cross-examination.

[96] Second, the application judge effectively drew an adverse inference against the mother for not producing documents from the ongoing refugee proceeding. The mother had been ordered, by a motion judge, to "respond" to a Request for Information which included a request for the contents of the RPD file. Counsel for the OCL and the mother both responded to that request, stating that the documents relating to the child's refugee claim were confidential. Shortly thereafter, and in addition to the protections under s. 166(c) of the IRPA already in place, the RPD decision maker made a confidentiality order to further protect the contents of the claimants' files and proceedings from external disclosure to the alleged agent of persecution. The decision maker specifically referenced the Hague application in Ontario and the family law proceedings in the claimants' country of origin in explaining these additional measures for protection.

[97] Third, the decision under appeal shows no deference to the expertise of the RPD on matters related to the assessment of country conditions, the ability of the state to protect, or the assessment of internal flight alternatives. The application judge relied on the father's expert, who testified and was cross-examined about the legislative framework in the country of origin. The mother's proposed expert, who has extensive experience on intimate partner violence in the country of origin and knowledge about the meaningful ability to access protections, was not permitted to testify. While the qualification of experts is a matter largely within the discretion of application judges, here, the appropriate approach would have been to defer to the tribunal whose expertise includes these very questions.

[98] As noted above, the evidence of the father's expert had already been heard when the refugee determination was provided to the court. This expert evidence should, however, have been assessed in the context of the RPD decision. Given the general nature of the expert's evidence, it was inappropriate to rely on that alone to refute the IRB's far more extensive expertise on country conditions, contained in the NDP's.

[99] I would add the following, from the perspective of the Németh framework referred to above at paras. 70-72.

[100] Németh directs that the non-refoulement obligation requires an assessment of whether risk persists. There is no onus on the refugee in this regard. Here, the RPD decision was released during the ongoing Hague application. There was therefore no question of persisting risk. Risk had been found contemporaneous with the Hague application.

[101] Finally, while the application judge expressed doubts about the mother's credibility and the reliability of her evidence, in my view those doubts could not vitiate the underlying refugee determination absent oral evidence and cross-examination.

[102] I conclude that the application judge referred to but did not apply the rebuttable presumption against the return of a refugee child. Questioning the basis for the presumption and choosing not to apply it absent case-specific rebuttal constituted an error of law, reviewable for correctness. This error alone is sufficient to allow the appeal.

[103] The law requires respect for and deference to the refugee determination process, a recognition of the unique role and expertise of that tribunal, and greater caution in any determination that a refugee child does not face a grave risk of harm in the face of return to the country of origin.

(2) The Child's Objection to Return under art. 13(2) of the Hague Convention

[104] A second significant issue in this appeal is the appropriate treatment of a mature refugee child's objection to return under art. 13(2) of the Hague Convention.

(i) Article 13(2) of the Hague Convention

[105] Article 13(2) provides as follows:

The judicial or administrative authority may also 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.

[106] This discretionary provision creates a defence for the child against return, separate and apart from any defence of the parent.

[107] In Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, the Supreme Court emphasized that the exceptions to the rule that a wrongfully removed child must be returned to the country of habitual residence are just that: exceptions. Thus, the exceptions should not be read so broadly as to erode the general rule: at para. 76.

[108] At the same time, this understanding "does not preclude a fact-based, common-sense approach to determining whether the elements of Article 13(2) are established": Balev, at para. 76. The court noted that the Hague Convention itself does not specify particular requirements or procedures to establish sufficient age and maturity and an objection: at para. 78. This, the court held, will in most cases be a matter of inference from the child's demeanour, testimony, and circumstances: at para. 79. The court continued: "As in the case of age and maturity, the child's objection should be assessed in a straightforward fashion – without the imposition of formal conditions or requirements not set out in the text of the Hague Convention": at para. 80. At para. 81, quoting In re M. (Abduction: Rights of Custody), [2007] U.K.H.L. 55, the court stated:

If the elements of (1) age and maturity and (2) objection are established, the application judge has a discretion as to whether to order the child returned, having regard to the "nature and strength of the child's objections, the extent to which they are 'authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations" ….

[109] See also Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 39.

[110] Giving appropriate weight to the objections of a sufficiently mature child is consistent with the policy objectives of the Hague Convention, the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and the role of children's views and preferences under the CLRA. As this court noted in A.M.R.I., "art. 12(1) of the CRC stipulates that the views of a child are to be given due weight according to the child's age and maturity and that a child has the right 'to express those views freely in all matters affecting the child'": at para. 111. Referring to s. 64(1) of the CLRA, which provides that the court shall, where possible, take into consideration the views and preferences of the child, as well as s. 64(2), which authorizes the court to interview the child, this court noted that, "recognition of the child's right to be heard on the Hague application conforms with the spirit and intent of s. 64 of the CLRA": A.M.R.I., at para. 110.

[111] Crucially, in A.M.R.I., this court held that in the context of a refugee child, "the views of the child gain greater importance": at para. 109. This makes eminent sense, given that a refugee child is a child who has been found by the RPD to be at risk of persecution in her home country. And, in any event, "[a]n order of return under the Hague Convention has a profound and often searing impact on the affected child": A.M.R.I., at para. 120.

(ii) Application

[112] The application judge recited the necessity of considering the child's views in determining whether they should ground a dismissal of the father's return application. She correctly set out the relevant portions of the Hague Convention and Balev, recognizing that art. 13(2) creates a stand-alone defence to the return of a child, and that, in the case of a refugee child, her views gain greater importance. The application judge emphasized the discretionary nature of the decision, noting that even where age, maturity, and objection are proven, the court is not required to refuse to order the child's return.

[113] The application judge acknowledged the child's objection to return and her wish to remain in Canada. However, she found that X had been influenced by her mother and that her views were therefore not authentically her own. In so doing, she relied on a custody and access report prepared in the country of origin, which in her view demonstrated that the child previously did not want to choose between her parents, and only after the removal became aligned with the mother. She also relied on what she found were similarities in the mother's and X's description of the violent incident against Y, which differed somewhat from the description by Y herself. The application judge concluded:

I have considered the views of [X] and the opinion of the clinician and other evidence introduced in these proceedings. I am not prepared to exercise my discretion to refuse to order [X's] return to [the country of origin]. To order otherwise would encourage other claimants in similarly situated families to believe that the mere expression of not wanting to be returned is sufficient to defeat treaty obligations.

[114] Recognizing that any decision under art. 13(2) is discretionary and therefore entitled to deference, I find that nevertheless, the treatment of this child's objection to return cannot stand.

[115] The evidence simply does not support, on any available interpretation, the conclusion reached regarding the independence of the child's views. The court relied on what was effectively one sentence in an inadmissible 2024 custody and access report prepared by a social worker, who was not cross-examined. That report appeared to be based on interviews with the parents and one interview with the child. From that, the author extrapolated that the child "did not want to feel negative about either parent" and "was at an age to feel the effects of being caught in the middle of the mutual resentment between her parents". The report contains no summary of the one meeting with the child.

[116] By contrast, before the Hague hearing, the child met with an experienced OCL clinician on multiple occasions. The clinician's affidavit, sworn October 28, 2024, set out the child's memory of the September 2021 attack on her sister, her fear that her father would also attack her, and that she is afraid for her safety in the country of origin if returned. The child also told the clinician that she and the mother moved frequently because the father kept finding their location, that she believed the father was surveilling her through the camera on her laptop, and that she never really felt safe at her father's home. The child confirmed to the clinician that her thoughts were her own and denied that anyone had spoken to her about the case or influenced her views about her relationship with her father. Throughout the meeting with the clinician, the child consistently stated that she did not wish to return to the country of origin.

[117] The affidavit of the clinician indicates that he attempted to contact the author of the custody and access report but received no response. He also attempted to contact Dr. M., who was ultimately found to be a participant expert, but again received no response.

[118] This child was found, by the tribunal specialized to make the finding, to have a well-founded fear of persecution. While the decision under appeal states that the views of a refugee child gain greater importance, this is not reflected in the application judge's treatment of the child's views. The decision below does not meaningfully explain how one sentence in an inadmissible report could have greater weight than the child's voice, articulated through an experienced OCL clinician after five meetings.

[119] Further, I agree with the mother and the OCL that in comparing the descriptions of the September 2021 incident, the application judge parsed the words of the mother and the child, even while recognizing that a serious violent incident took place, rejecting the father's denials of violence, and acknowledging the fear X "may have". This was not a reasonable basis on which to find that the child was under the influence of or aligned with the mother, so as to negate the strength of the child's clear objection.

[120] In my view, while the application judge acknowledged that art. 13(2) of the Hague Convention creates a stand-alone defence to the return of the child, she effectively allowed her concerns about the mother's credibility, arrived at on a paper record, to overshadow her assessment of the evidence regarding the child's independent objection to return.

[121] This refugee child clearly and repeatedly objected to return based on fear of violence by her father, where the application judge accepted that he had been violent with her sibling. The child's objection, in these circumstances, ought to have been given effect. Dismissing this child's objection constitutes a palpable and overriding error, permitting this court's intervention.

(3) Remedy

[122] Having determined that the court erred in its approach to the rebuttable presumption of grave risk of harm, and in dismissing the child's objection to return, the mother's appeal must be allowed and the decision of the application judge set aside. I turn now to the applicable remedy.

[123] In her Notice of Appeal, the mother seeks an order that the matter be remitted to the Superior Court with direction that the court has jurisdiction under s. 23 of the CLRA. In the alternative, she seeks an order that the matter be remitted for a re-hearing of the Hague application.

[124] Section 23 of the CLRA provides that despite ss. 22 and 41 of that Act, a court may exercise its jurisdiction to make or vary a parenting or contact order with respect to a child if (b) the court is satisfied that the child would, on a balance of probabilities, suffer serious harm if (iii) the child is removed from Ontario. As established above, that test is met on the record before the court.

[125] The matter should be remitted to the Superior Court, before a different judge, for the determination of interim and final decision-making and parenting time. Given the outcome of the appeal, and to ensure stability and clarity for the child pending a motion, it is in the interests of justice that this court make an interim-interim parenting order. Pending such motion in the Superior Court, the mother shall have decision-making authority, and the child shall reside with her. The father shall have video-parenting in accordance with the child's views and preferences, which appear on the record before this court to be consistent with her best interests at this time.

I. Disposition

[126] I would allow the appeal and set aside the application judge's order.

[127] I would declare/order that Ontario Courts have jurisdiction under s. 23 of the CLRA. I would remit the matter to the Superior Court before a different judge for the determination of interim and final decision-making and parenting time.

[128] I would also order that, pending a motion before the Superior Court, the mother shall have interim-interim decision-making authority in relation to X, and X shall reside with her. The father shall have such video-parenting time as is consistent with the child's views and preferences.

[129] Finally, I would also order that, pending further order of the Superior Court, neither party is permitted to remove the child from the province of Ontario.

J. Costs

[130] At the hearing of this appeal, this court directed that if parties could not agree on the quantum of costs, they may make submissions to the court in the usual course. No costs submissions have been filed.

[131] The mother is entitled to costs of this appeal. If the parties cannot agree on the quantum of costs, they may make written submissions, limited to three pages, double spaced, including a Bill of Costs, on the following schedule:

The mother: September 12, 2025 The OCL: September 12, 2025 The father: September 19, 2025

Released: August 26, 2025

L. Madsen J.A.

"I agree. S. Coroza J.A."

"I agree. M. Rahman J.A."

Footnotes

[1] Further to the order dated June 12, 2025, the identity of the parties and the child is confidential. The names "Kirby" and "Woods" are pseudonyms generated by an online random name generator. This decision is written in a manner intended to maintain confidentiality.

[2] The father had commenced his Hague application in the country of origin on August 5, 2024. However, there is no evidence that the mother was served with any documents until September 18, 2024, after she commenced her refugee application.

[3] In oral argument, the parties briefly addressed the mother's further request that this court make the substantive parenting orders sought in her Answer to the Application, for decision-making authority and in respect of parenting time. This was not pled on appeal, and argument was limited.