Patric Senson

The applicant mother sought the return of her two children to Costa Rica under the Hague Convention on the Civil Aspects of International Child Abduction, arguing they were habitually resident there and wrongfully retained in Canada by the respondent father.

The father contended the move to Costa Rica was temporary and the children's habitual residence remained Ontario.

The court applied the hybrid approach to determining habitual residence, considering parental intention and the children's acclimatization, and found that the children's focal point of life was Costa Rica as of August 11, 2023.

The application was granted, and the children were ordered to be returned to Costa Rica, as no exceptions to return applied.

The mother appealed a final order placing her 12-year-old child in the extended care of the children's aid society with access at the society's discretion.

The mother argued the trial judge misapprehended evidence, provided insufficient reasons, misapplied the law, and erred in relying on a parenting capacity assessment.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors in the trial judge's assessment of the mother's mental health and behaviour, which posed a risk to the child.

On consent, the access order was varied to provide the mother with supervised access at least once a week in accordance with the child's wishes.

The father applied under the Hague Convention for the immediate return of his three children from Canada to Israel, alleging wrongful removal by the mother.

The mother opposed the application, asserting that returning to Israel would expose her and the children to a grave risk of physical and psychological harm, and would place them in an intolerable situation, thereby invoking exceptions under Article 13(b) and Article 20 of the Hague Convention.

The court found a history of domestic abuse by the father against the mother, suspicious circumstances surrounding a grenade attack at the grandparents' home, and the father's use of intimidation.

The court also considered the mother and children's status as Convention Refugees in Canada, which created a rebuttable presumption of persecution risk if returned.

The court concluded that the mother had discharged her burden to prove the exceptions applied, and therefore dismissed the father's application for the children's return to Israel.

This appeal addressed habitual residence under Article 3 of the Convention on the Civil Aspects of International Child Abduction after a parent retained children in Canada beyond a time-limited consent period.

The Court adopted a hybrid, multi-factor approach that evaluates all relevant circumstances, including but not limited to parental intent and the child's links to each state.

The Court also endorsed a non-technical approach to Article 13(2), requiring proof of sufficient maturity and a genuine objection before discretion is exercised.

Although the matter was moot, the appeal was resolved to clarify national law and emphasize expeditious handling of return proceedings.