Kirby v. Woods, 2025 ONSC 2655

The citation and title of proceeding was amended on October 30, 2025, to ensure consistency with the re-release of the motion decision Kirby v. Woods, 2025 ONCA 437 on October 30, 2025.

AMENDED DECISION RELEASED AUGUST 6, 2025: The text of the original judgment was amended to accord with the Restriction on Publication ordered in Kirby v. Woods, 2025 ONCA 437 on June 12, 2025.

RESTRICTION ON PUBLICATION

These proceedings are subject to restrictions on access to protect the interests of the child pursuant to section 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and section137 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Pursuant to the order of Madsen, J.A., Kirby v. Woods, 2025 ONCA 437, the names “Kirby” and “Woods” in the title of proceedings were generated by an online random last name generator. The case is anonymized for the protection of the child, whilst the case name remains memorable for purposes of precedent. No person shall publish or make public information that has the effect of identifying the parties or the child who is the subject of this proceeding.

Any document in the court record created pursuant to the IRPA, including but not limited to written decisions of the IRB, shall be sealed. Access to this portion of the file shall be limited to the court and authorized court employees, the parties and their counsel, and the OCL.

Any request for access to the remaining unsealed court record under s. 137(1) of the CJA shall be made on notice to the parties in accordance with Rule 1.3 of the Family Law Rules. The parties may at that time submit redacted versions of the court documents in which any information that has the effect of identifying the child has been removed. This applies to a request for access to this court’s unsealed court record.

Any person who gained, or gains in the future, access to unredacted copies of any document in the court record shall treat the unredacted records as confidential and shall not share or publish the records in any format that could identify the parties or the child.

CITATION: Kirby v. Woods, 2025 ONSC 2655

COURT FILE NO.: FS-24-44880-0000

DATE: 20250505

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kirby Applicant

– and –

Woods Respondent

– and –

the Child

Meghann Melito and Aria MacEachern, for the Applicant

Sophia Dales, Meghan De Snoo, and Alina Valachi, for the Respondent Renatta Austin, Counsel for the Child

HEARD: November 4 and 7, December 3, 5, and 6, 2024, and January 6, 9, 13, 14, and 16, 2025

PUBLICATION RESTRICTION NOTICE

This decision is subject to restrictions on access to protect the interests of the child pursuant to section 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and section137 of the Courts of Justice Act, R.S.O. 1990, c. C.43. No person shall publish or make public information that has the effect of identifying the parties or the child who is the subject of this proceeding.

AMENDED DECISION RELEASED AUGUST 6, 2025: The text of the original judgment was amended to accord with the Restriction on Publication ordered in Kirby v. Woods, 2025 ONCA 437 on June 12, 2025.

HAGUE APPLICATION

REASONS FOR DECISION

RHINELANDER, J.

1The Applicant father initiated proceedings for the return of the child, born in July of 2012, and now aged 12, to the Bahamas pursuant to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the “Hague” or “Convention”). Canada and the Bahamas are both signatories to the Convention, and therefore have reciprocal treaty obligations.

2The Respondent mother concedes the child’s removal from Bahamas was “wrongful” as defined under Article 3 of the Convention. However, she relies on exceptions in the Convention to oppose the child’s return and asks that this application be dismissed.

3The child is represented by the Office of the Children’s Lawyer. She also requests the application be dismissed, based on exceptions to the Convention. The child currently resides with the mother in Ontario.

4The parties agreed there is no dispute about the following facts:

a) The child was habitually a resident of the Bahamas at the time of her wrongful removal and retention;

b) The father did not acquiesce to the child’s move to Canada, nor did he delay in commencing this proceeding;

c) The father was exercising his parenting rights in the Bahamas at the time of the wrongful removal and retention; and

d) It has been less than one year between the date of the wrongful removal and the date of the commencement of the proceeding.

5Accordingly, I find that the child’s removal from the Bahamas was “wrongful” as defined under Article 3 of the Convention. I also find, pursuant to Article 12 of the Convention, this Court is required to order the return of the child to the Bahamas unless an exception to the Convention applies.

A. ISSUES TO BE DECIDED

6The mother and the OCL rely on exceptions in Articles 13 and 20 of the Convention. Therefore, the issues to be decided are:

1. Pursuant to Article 13(b) of the Convention, is there a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation such that this Court is not bound to order the return of the child?

2. Pursuant to Article 13(2), is the Court satisfied that the child objects to being returned and that she has attained an age and degree of maturity such that the Court should take account of her views? If so, should the Court refuse to order the return of the child?

3. Pursuant to Article 20, should this Court exercise its limited discretion to refuse to order the return of the child because it would impact the fundamental principles of Canada relating to the protection of human rights and fundamental freedoms?

7For the reasons that follow, I find the exceptions in Article 13 and Article 20 of the Convention do not apply; the father’s application is granted with an order that the child be returned to the Bahamas. By agreement of all parties, there is a stay on execution of the Order for the return of the child to the Bahamas for a period of fourteen days.

B. BACKGROUND AND PROCEDURAL HISTORY

8The parties married September 12, 2003, and separated September 21, 2015. They were granted a divorce in 2019. There are three children from the relationship – M and A, who are both adults, and the child who is 12 years old.

9The mother, father, and the child are all Bahamian nationals, having all been born and raised there. The child was born July 9, 2012. She had never left the Bahamas until July 4, 2024.

Proceedings in the Bahamas

10The parties exercised equal parenting time from 2015 until September 5, 2021. This arrangement was formalized by Order of the Supreme Court of the Bahamas, on consent, on November 24, 2020. The Order had the child with her father on a two-week alternating schedule.

11On September 5, 2021, an incident occurred between the father and A. The child was present in the home on that date. Police were contacted and A and the child were later removed from the father’s care. The father had no further contact with the child until December 2023. The father and mother disagree on why the father had no contact during that period.

12On December 13, 2023, the Court granted the father parenting time with the child commencing December 26, 2023, and continuing every other Saturday from 10:00 a.m. to 6:00 p.m.

13On January 19, 2024, the father was arrested regarding the incident on September 5, 2021. The Department of Public Prosecutions reviewed the file and recommended no criminal charges be laid and recommended the father attend parenting classes, anger management, and family counselling at the crisis center.

14On January 24, 2024, the father’s counsel in the Bahamas served and filed his trial bundle on the mother’s lawyer. The father anticipated a trial would proceed in August or September of 2024.

15On April 5, 2024, the Court increased the father’s parenting time to alternate weekends from Friday after school to Sunday evenings at 6:00 p.m. Further, the parties were ordered to equally share school holidays including the summer, and the child was not to be removed from the jurisdiction without the consent of the other parent.

16The Court requested a complete Custody and Access Report be prepared by the Department of Social Services, Children and Family Services Division. The Report was completed April 30, 2024. It included an interview with the child.

17The father consented to the child travelling with the mother for a vacation to Canada from July 4, 2024, to July 24, 2024. As planned, the mother travelled to Toronto with the child and A on July 4, 2024. The mother failed to return the child to the Bahamas on July 24, 2024.

18In the Bahamas, a warrant was issued for the mother after she failed to attend court on August 1, 2024, and again on August 7, 2024. On August 5, 2024, the father filed an Application in the Bahamas for Assistance Under the Hague Convention.

Refugee & Hague Convention proceedings in Ontario

19On August 14, 2024, the mother filed a refugee claim in Ontario for herself and the child.

20On September 17, 2024, the father’s Hague application was issued in this Court and served on the mother via email on September 18, 2024, at 9:38 a.m. That same day, the mother attended at the Immigration and Refugee Board (“IRB”) and deposited her and the child’s passports.

21The father seeks orders pursuant to s. 46 of the Children’s Law Reform Act (the “CLRA”) for the return of the child. This section incorporates the Convention into Ontario law, including the mandatory return of children to their country of habitual residence, subject to specific exceptions.

22On October 7, 2024, the mother served her Answer. She disagreed with all claims of the father and made a claim of her own including a restraining/non-harassment order; sole decision‑making responsibility with ancillary terms in the best interests of the child that consider the child’s wishes as well as risks of family violence; a non-removal order from Canada for the child; disclosure; and costs.

23Early judicial case conferences were held before Nakonechny J. on September 23, September 26, October 2, and October 30, 2024. Her Endorsements reflect various timetables with which the parties were to comply. Those Endorsements make clear the mother did not comply with what was ordered.

24On September 26, 2024, Nakonechny J. fixed one day for the hearing, which was to proceed on November 4, 2024. However, on October 30, 2024, she scheduled a further day of hearing on December 5, 2024, because parties advised expert evidence was anticipated to be called. Also on October 30, 2024, Nakonechny J. noted the mother had not complied with deadlines for filing material, which dates were fixed on October 2, 2024.

25On October 30, 2022, Nakonechny J. denied a request from the mother to adjourn the hearing, pending a determination from the IRB on the child’s refugee claim. In her Endorsement, she noted the Court’s obligation under treaty and domestic law to hear Hague cases within six weeks.

26On October 31, 2024, the father brought a 14B motion for the court to address breaches of the Orders made by Nakonechny J. She ordered that these be dealt with by the hearing judge.

27On November 1, 2024, the mother brought a 14B motion to vary the Orders of Nakonechny J. and again to adjourn this hearing, among other relief.

28I was assigned to hear this case. The first day of the hearing was November 4, 2024, commencing at 9:00 a.m.

29At 8:16 a.m., the OCL filed an urgent motion joining the mother’s request for an adjournment of the hearing pending a determination of the child’s refugee claim and leave of the court to rely upon an affidavit from Roy Reid sworn November 4, 2024, in support of the request.

30Oral reasons were given to grant leave to vary paragraph 7 of Nakonechny J.’s Order of October 30, 2024, and to permit the OCL to file and rely upon the materials filed that morning.

31I dismissed the joint request of the mother and the OCL to adjourn the hearing, with reasons to follow. Those reasons are below.

32I dismissed the father’s request to exclude the affidavits of L.G., S.C., and Alicia Wallace based on the mother’s failure to comply with the timelines set by the Court. In the alternative, the father sought to cross-examine Ms. Wallace. I ruled that should Ms. Wallace be qualified as an expert, the father was granted leave to cross-examine her. Cross-examination of the experts had previously been agreed to on October 30, 2024, before Nakonechny J.

33I reserved the father’s request for other remedies regarding breaches of court orders until the conclusion of the Hague application.

34On the first day of the hearing, it became clear insufficient time had been scheduled for this case. Several unanticipated and complex issues arose. Scheduling and party availability compounded the problem. Despite best efforts to conclude the hearing sooner, ten days over three months were consumed. The protracted hearing was due in large part to schedules of counsel and the Court.

35The parties commenced with cross-examination of Dr. Major, a participant expert, on November 4, 2024. Due to disclosure issues regarding the production of her file, latitude was given to the mother and the OCL to cross-examine. Cross-examination was not completed and continued November 7, 2024. The matter was adjourned to December 5, 2024.

36In the interim, the parties were able to find two hours of availability on December 3, 2024, to conduct voir dires regarding qualifications of two proposed experts. Only one was completed. The second voir dire was conducted on December 5, 2024. For reasons set out below, Alicia Wallace was not qualified as an expert. Shantelle Munroe was qualified to give expert opinion evidence on the law of the Commonwealth of the Bahamas and legal protections and services that are available in the Bahamas to victims of domestic violence and child abuse.

37On December 5, 2024, the OCL sought leave to introduce new information and an affidavit regarding its request for an adjournment of this hearing pending a decision from the IRB. The information related to a decision released by the Ontario Court of Appeal and actions by the father in sending unsolicited information to the IRB which could delay the refugee hearing. Without disclosure of this document to all parties, I was not prepared to receive submissions on its admissibility. I directed OCL’s counsel, Ms. Austin, to disclose it and the matter could be addressed later if necessary. During arguments, counsel for the mother sought leave to cross‑examine the father. This was the first time this request had been made.

38The matter was adjourned to December 6, 2024, for counsel to review the document the OCL sought to tender, for arguments on its admission, and to address the request for leave to cross‑examine the father.

39After arguing the admissibility of the document, which included a letter from the child’s immigration counsel, all parties agreed to a stipulation that unsolicited information was sent to the IRB on the father’s behalf, and this may delay the child’s refugee hearing. Due to the time spent arguing this issue, the parties agreed to provide written submissions regarding the request to cross‑examine the father. The father was opposed, but argued in the alternative, should the mother be permitted to cross-examine the father, he would seek leave to cross-examine the mother, A , L.G., and S.C.

40Timelines were set to receive written submissions on the requests to cross-examine. January 6 to 9, 2025 inclusive were scheduled to continue the hearing.

41On January 3, 2025, the requests to cross-examine the father were dismissed with reasons to follow. Those reasons are below.

42Submissions commenced January 6, 2025. The onus was on the mother and the child to establish an exception under the Convention. During the mother’s submissions, Ms. Austin for the OCL advised she received information that the IRB had determined the child’s refugee claim, and she needed an opportunity to speak with the child’s immigration lawyer. A short recess was granted. Upon resuming, Ms. Austin shared a letter with all parties that stated the child had been granted refugee status. Based on this new information, the OCL requested submissions be adjourned to continue January 9, 2025. The granting of refugee status changed the onus. The father now had to rebut the presumption of grave risk of harm.

43On January 9, 2025, the mother brought a 14B motion seeking leave to admit an affidavit sworn by her on that same date. The affidavit included a letter from the IRB Registry Officer granting the mother, A, and the child, refugee status. The father was opposed to the admission of the affidavit and the letter. There was no issue regarding the change in status of the child and therefore no need for the affidavit to be admitted as evidence. In oral reasons, I dismissed the mother’s request to file the affidavit and letter from the IRB. The best evidence of the IRB’s decision was the actual decision of the panel that heard the refugee claim.

44The parties attended January 13, 2025, to complete submissions, however, the IRB decision provided to the father was incomplete. It referenced an appendix that was not attached to its decision. Submissions were completed January 14 and 16, 2025.

45The Ontario Court of Appeal released its decision in A.A. v. Z.S.M., 2025 ONCA 283, on April 16, 2025. Counsel was provided an opportunity to make further submissions on A.A. v. Z.S.M. because they relied on cases cited therein, including the proper interpretation of M.A.A. v. D.E.M.E., 2020 ONCA 486. All counsel agreed no further submissions were necessary.

Reasons for Declining Adjournment – November 4, 2024

46On November 4, 2024, I dismissed the mother and OCL’s request to adjourn the hearing. These are my reasons.

47First, Rule 37.2(2) of the Family Law Rules, which incorporates Article 11 of the Convention, requires that Hague cases be disposed of within six weeks from commencement. Ontario courts are expected to prioritize these cases and promptly determine if the child should be returned to the foreign jurisdiction. There is significant appellate authority for this proposition: see Leigh v. Rubio, 2022 ONCA 582, paras. 18-20, 28; Zafar v. Azeem, 2024 ONCA 15.

48Second, the mother’s request for an adjournment was already determined by Nakonechny J. on October 30, 2024. In her Endorsement, she commented on the Court’s obligation under treaty and domestic law to determine Convention cases promptly. It was improper to seek the same relief before a different judge.

49Third, I reject the OCL’s position that the Ontario Court of Appeal’s decision in M.A.A. v. D.E.M.E., 2020 ONCA 486, precludes a court from making a return order until the refugee claim has been addressed first.

50In arguing M.A.A. v. D.E.M.E. requires an adjournment, the OCL relied on the mother’s material and additional material it filed at 8:16 a.m. on November 4, 2024. The OCL advised it received verbal confirmation from Ms. Robinson, counsel from the Refugee Law Office, on Friday, November 1, 2024, after regular business hours, that an urgent case conference was held that afternoon before the IRB. Ms. Robinson was appointed to assist and represent the child regarding her refugee claim. The new material from the OCL filed that morning attached to an affidavit a letter from Ms. Robinson stating the IRB scheduled a hearing for early December of 2024 with a decision expected later that month. The letter indicated the IRB was aware of these proceedings and expedited the hearing for this reason. I admitted the letter because Ms. Robinson was an officer of the court, and it was important for the Court to know the status of the refugee claim. With this letter, the OCL and the mother argued any delay would be brief, but the risk of proceeding prior to a refugee determination was great.

51The OCL explained its position that refusing an adjournment would be unfair and inconsistent with the principles of natural justice. The OCL relied on paragraph 61 of M.A.A. v. D.E.M.E. and A.M.R.I. v. K.E.R., 2011 ONCA 417, for the proposition that efficiency does not trump the requirements of natural justice or override the principle of “non-refoulement” established in s. 115(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The principle of “non-refoulement” provides that a protected person not be removed from Canada where he or she would be at risk of persecution of varying types in the country to which they would be removed. At para. 63 in M.A.A. v. D.E.M.E., the Court notes that the principle of non‑refoulement “applies not only to recognized refugees, but also to asylum seekers whose status has not yet been determined.”

52The OCL argued the principle of non-refoulement is a principle of fundamental justice. An order requiring the return of the child before a determination on the asylum claim would violate the child's rights under the Canadian Charter of Rights and Freedoms, as well as Canada's obligations under the Refugee Convention and the Convention on the Rights of the Child.

53When asked how to reconcile the international treaty responsibility with the domestic law in Canada, the OCL relied on Article 11 of the Convention which provides for a process to address circumstances of delay – namely the applicant or the Central Authority of the requested State has a right to request a statement of the reasons for the delay.

54The OCL further relied upon decisions from this Court that have held that M.A.A. v. D.E.M.E. (a non-Hague case) applies to Hague matters. It relied on Nacoulma v. Ajiayi, 2022 ONSC 5819, where Pinto, J. stated at para 10, “[t]o his credit, appellant counsel noted, however, that under the principle established in [M.A.A.], the court could not order the return of the children to Michigan before the determination of the mother’s and their refugee claim since the principle of non-refoulement applies.”

55What OCL counsel failed to reference was the sentence that followed where Pinto, J. held that the appeal should proceed. The entirety of para 10 of his decision reads:

The appellant requested that I draw an adverse inference from the respondent’s failure to provide supporting documentation in respect of the respondent’s immigration status in Canada and that I should conclude that the respondent had “no legal status” to remain in Canada. To his credit, appellant counsel noted, however, that under the principle established in M.A.A. v. D.E.M.E., 2020 ONCA 486, 152 O.R. (3d) 81, the court could not order the return of the children to Michigan before the determination of the mother’s and their refugee claim since the principle of non refoulement applies. Be that as it may, the appellant submitted, and I agreed, that I should nevertheless proceed to rule on the appeal rather than await the outcome of the IRB hearing. For the purpose of this appeal, I conclude that the mother’s proceedings before the IRB are still in progress and that her legal status to remain in Canada is still undetermined. [Emphasis added].

56M.A.A. v. D.E.M.E. was not a Hague case; it was an application under s. 40 of the CLRA because the country (Kuwait) was not a signatory to the Convention. As Benotto J.A. stated in M.A.A. v. D.E.M.E. at para. 72, “I would leave to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim”. Therefore, M.A.A. v. D.E.M.E. did not decide Convention cases must be adjourned pending determination of refugee claim.

57Furthermore, as the Court of Appeal recently clarified in A.A. v. Z.S.M., 2025 ONCA 283 at paras 97 to 102, M.A.A. v. D.E.M.E. does not create a blanket prohibition against a return order in the face of an outstanding refugee application. While A.A. v. Z.S.M. and M.A.A. v. D.E.M.E. were both non-Hague cases, the rationale applies equally to Hague cases. The Convention, s. 40 of the CLRA, and the principle of non-refoulement in the IRPA all have as a common objective the protection of serious harm to a child, even though the nature of harm is different. The Convention and s. 40 of the CLRA presume that once a child has been wrongfully removed or retained, the child’s best interests generally align with a return to his or her home country. Under the IRPA, the potential extinction of a refugee application is a different form of serious harm: see A.A. v. Z.S.M., supra at para. 79.

58As with the CLRA, there is nothing in the Convention or other Ontario statute that would prevent the Court from determining a Hague case while a refugee application is pending. The Court stated in A.A. v. Z.S.M at para 98:

…M.A.A. does not serve to override the court’s jurisdiction to exercise its authority under the CLRA in the face of an outstanding refugee application. This would leave the court in the unintended position where it was powerless to provide the appropriate remedy and protect the best interests of children who are wrongfully abducted or retrained. Critically, there is nothing in the CLRA or IRPA that mandates an automatic bar to return orders in the face of outstanding refugee claims. Rather, as F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387] instructs, a court considering a return order must carry out a detailed analysis of all relevant factors.

59At the time of the adjournment request, this Court had not made any determinations regarding the return of the child. Further evidence and argument were to be received regarding the child’s best interest and whether there was a grave risk of harm, including risk of harm arising from the extinction of her refugee application. However, there was affidavit evidence which I reviewed that gave concern about the best interests of the child were she not returned to the Bahamas. The parties agreed that the child had been wrongfully removed, as defined in Article 3 of the Convention. There was a court order in place in the Bahamas, a signatory to the treaty, that gave the father parenting time at the time of the “wrongful” removal. Considering F. v. N., 2022 SCC 51, and the importance of determining Hague cases swiftly, I determined it was necessary to hear all the evidence and submissions around risk of harm promptly rather than grant an adjournment.

60Of course, if while hearing evidence and submissions, I was satisfied there was a grave risk of harm to the child were she to be returned to the Bahamas, it remained open to me to wait and consider the IRB’s determination of the refugee claim before rendering my decision. In addition, proceedings before this Court are more fulsome with strict evidentiary requirements as compared to the IRB which is not bound by legal or technical rules of evidence and can reach a conclusion on untested evidence: See A.M.R.I. v. K.E.R., at para 73. Therefore, were I to find an exception under the Convention exists before the IRB reached its decision, my decision could be considered by the IRB in its determination. Alternatively, if I were satisfied there is no serious risk of harm if the child were to be returned, including the potential extinction of a refugee application, this could equally be considered by the IRB. As I explain later, the IRB’s decision was released before the completion of these proceedings.

61For these reasons, I dismissed the adjournment request.

C. POSITION OF THE PARTIES

62The mother provided sworn evidence that there has been a history of physical, sexual, and emotional abuse throughout the marriage. This abuse extended to the parties’ middle daughter. She claimed her efforts to obtain assistance and protection from the police for herself and her children went unanswered and ignored. The mother described feeling vulnerable, alone, and scared due to the lack of concern and action taken by the police. She expressed continued fear for her life and that of her daughters. She is concerned there is no protection for them in the Bahamas and the father would kill them if they remained. It is this inaction and lack of protection that caused her to seek refuge in Canada.

63The incident on September 5, 2021, between A and the father have had a significant impact on the child. She objects to being returned to the Bahamas because she is afraid something similar will happen to her. She has a very real fear of a return and high anxiety regarding any form of contact with her father. She expressed that she does not want any further contact with the father and does not want to be separated from the mother and A.

64The father denied any abuse or harassment towards the mother. He disputes her claims that the Bahamas, its laws, and courts are unable to protect women and children. Further, the mother failed to raise any of the allegations of abuse throughout their family court proceedings.

D. OVERVIEW OF EVIDENCE

65Affidavits were filed by all parties in these proceedings.

66The father filed three sworn affidavits dated: October 16, 2024, November 1, 2024, and December 6, 2024. He also relied on the affidavits of: M sworn October 16, 2024, November 1, 2024, and January 13, 2025; Z.B. sworn October 16, 2024; L.B. sworn November 1, 2024; and the affidavits of his two expert witnesses, Dr. Michelle Major and Shantelle Munroe.

67The mother relied on her affidavits sworn October 30, 2024, and November 1, 2024. She also relied on affidavits from L.G. sworn October 31, 2024, and S.C. sworn October 31, 2024. The mother sought to call expert evidence regarding domestic violence issues involving women and children, gender-based violence in the Bahamas, the conditions facing women and children in the Bahamas, and how systems in that country respond. For reasons set out below, Alicia Wallace was not qualified as an expert and her evidence was not admitted on these proceedings.

68The OCL relied upon an affidavit of A sworn October 27, 2024, and two affidavits dated October 28, 2024, November 4, 2024, of Roy Reid, a member of the OCL clinical panel assigned to assist Ms. Austin regarding the representation of the child.

Hearsay Evidence

69The father and the OCL raised concerns regarding portions of affidavits filed on the application that contained inadmissible content and hearsay evidence. The parties were invited to discuss whether they could agree on what should be redacted or removed, failing which, I would decide the admissibility of the proposed areas identified. This issue was pushed to the backburner to focus on more pressing issues during the hearing and was left for me to decide.

70Having reviewed the passages identified by counsel, I find portions were clearly hearsay and/or inadmissible. In addition to these passages, there was other content within the affidavits that relied upon hearsay and contained evidence otherwise inadmissible. Often, the content included information provided or observed by other parties that the affiant sought to rely upon for the truth of its contents. I disregarded those portions of the parties’ and witness’ affidavits that relied upon hearsay and other inadmissible evidence including the following: i) specific paragraphs in the father’s October 16, 2024, affidavit: 85, 96a, 96c, 97, 100 – 106, 108 – 112, 114, and 124; ii) portions of M’s October 16, 2024 affidavit including paragraph 9; iii) portions of the affidavits of Z.B., the mother, L.G., S.C., and A. Similarly, where information was set out in the affidavit of Roy Reid regarding the interviews with the child, I have disregarded portions of the affidavits where the information provided is clearly not based on the child’s direct knowledge, but information provided by others.

Expert Evidence

71The father proposed to call two expert witnesses, Dr. Major, a participant expert, and Ms. Shantelle Munroe, a litigation expert. The mother and the OCL did not challenge the professional qualifications of Dr. Major but sought to cross-examine her and had concerns with aspects of her evidence. The mother and the OCL challenged the qualifications of Ms. Munroe, a lawyer in the Bahamas, to give evidence about the law and the legal system in the Bahamas.

72The mother’s proposed expert was Alicia Wallace. The OCL did not dispute Ms. Wallace’s qualifications, however, the father did.

Legal Principles Regarding Expert Evidence

73A witness can testify about what they saw and what they did. This is fact evidence. In contrast, admissibility issues arise when an expert – either a participant who has made observations or participated in events, or a litigation expert who has not - is tendered to provide opinion evidence.

74The admissibility of expert evidence is governed by a two-part analysis set out in R. v. Abbey (2017), 2017 ONCA 640, 350 C.C.C. (3d) 102 (Ont. C.A.) and later adopted in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

75In R. v. Abbey, (2017), 2017 ONCA 640, 350 C.C.C. (3d) 102 (Ont. C.A.), at paras. 46-55, Laskin J.A. provided a helpful review of the test to be applied to the admissibility of expert evidence considering developments in the jurisprudence:

The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan (1984), 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly. In Abbey #1 itself – on the Crown’s appeal from the acquittal at the first trial – my colleague Doherty J.A. reformulated the Mohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. adopted with “minor adjustments” Doherty J.A.’s reformulation of Mohan.

The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach, first suggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge’s discretionary gatekeeper role. Each stage has a specific set of criteria.

The test may be summarized as follows:

Expert evidence will be admissible when:

(1) It meets the threshold requirements of admissibility, which are:

(a) The evidence must be logically relevant;

(b) The evidence must be necessary to assist the trier of fact;

(c) The evidence is not subject to any other exclusionary rule;

(d) The expert is properly qualified, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is:

(i) impartial,

(ii) independent, and

(iii) unbiased.

(e) For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose; and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

(a) Legal relevance,

(b) Necessity,

(c) Reliability, and

(d) Absence of bias.

In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.

76In both Abbey and White Burgess, the courts emphasized three additional significant points that must guide the admissibility analysis. First, after White Burgess, the importance of the trial judge’s gatekeeping role is heightened. The application of the modern admissibility test requires a rigorous scrutiny of the proposed expert evidence at the admissibility stage and should not be admitted too easily on the basis that the frailties of the evidence will go to weight rather than admissibility: White Burgess, at para. 20.

77Second, the reliability of the proposed evidence is central at the gatekeeping stage in assessing the probative value of the evidence. Unreliable evidence should be disqualified from admission: Abbey, at para. 87; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.

78Third, as per White Burgess, a proposed expert’s lack of impartiality and independence is relevant both to the threshold admissibility of the evidence, going to the question of whether the expert is a “properly qualified” expert, and to the gatekeeping stage, in assessing the benefit and costs of admitting the evidence. However, the mere fact that an expert may have an interest in or a connection to a party or to the case is, as a general matter, insufficient to disqualify the proposed expert: White Burgess, at paras. 42 and 49. Further, this factor, at the threshold stage, is not particularly onerous and exclusion of a proposed expert at the threshold stage based on bias or partiality will be “quite rare” and should only occur in “very clear cases”: White Burgess, at para. 49.

Participant Expert versus Litigation Expert

79The test for admissibility of opinion evidence from participant experts and non-party experts is the same that applies to litigation experts. The evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified. If the proposed expert evidence meets the threshold criteria, the judge must execute their gatekeeper function. See: Girao v. Cunningham, 2020 ONCA 260.

80The Court of Appeal in Westerhof v. Gee, 2015 ONCA 206 at paras. 60 to 64, distinguished between participant experts and litigation experts, by defining the former as:

[60] … a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[61] Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

[62] Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

[63] If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.

[64] As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

81A participant expert does not have to sign the expert’s certificate under rule 20.1. However, pursuant to rule 20.2(14), a party who intends to call a participant expert shall serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.

82I applied this analysis in determining whether each of proposed expert’s evidence was admissible.

Shantelle Munroe

83The father sought to have Ms. Munroe qualified as an expert to give evidence relating to the laws of the Commonwealth of the Bahamas and how the courts in the Bahamas protect victims of domestic violence and child abuse.

84The Respondent and the OCL challenged the qualifications of Ms. Munroe and the area of expertise that the father sought opinion evidence. During the voir dire, all parties agreed Ms. Munroe could be qualified to give expert opinion evidence on the law of the Commonwealth of the Bahamas and legal protections and services that are available in the Bahamas to victims of domestic violence and child abuse.

85Applying the test set out in White Burgess, I found Ms. Munroe to be qualified to give expert opinion evidence in these areas. The evidence from the voir dire was applied and admissible.

Dr. Michelle Major

86Dr. Major was called to give evidence regarding her interactions with the family commencing January of 2019 to June of 2024.

87Dr. Major is a licenced and nationally certified school psychologist with over eighteen years of experience working with children with disabilities in the private and public sectors. She obtained her Bachelor of Science and Master of Science in Psychology from Barry University in Miami, Florida in 1997 and 1999 respectively, followed by a Specialization in School Psychology in 2001, and her Doctorate degree in Education and Leadership specializing in Exceptional Student Education in 2005. Dr. Major has practiced as a psychologist since 2001, taught at Barry University as an adjunct and associate professor, before her current position which she has held since 2008 as the clinical director at the Caribbean Center for Child Development.

88The mother and the OCL did not contest Dr. Major’s qualifications but sought to cross‑examine her.

89Dr. Major’s first involvement with the family was January of 2019. She focussed on sessions with A and conducted a comprehensive school neuro-psychoeducational evaluation. She met with the parents in the summer of 2019 and discussed the results. Dr. Major had no further contact with the family until February of 2023. The next contact with the father was December 19, 2023, in advance of his first visit with the child since the September 5, 2021, event.

90Much of the contents of Dr. Major’s affidavit focussed on individual sessions she had with the father in early 2024 and a family session with the child in June of 2024. These sessions were held in preparation and to provide an opinion in the ongoing family proceedings in the Bahamas.

91I have determined opinions and evidence gathered for purposes of litigation are inadmissible. For these reasons, I disregarded Dr. Major’s evidence that pertained to sessions and observations made after December 19, 2023. I am also mindful of the opinions she formed of the mother and have placed limited weight, if any, on those specific comments.

Alicia Wallace

92The mother sought to call Alicia Wallace to give evidence as an expert on domestic violence issues including women and children, gender-based violence in the Bahamas and the conditions facing women and children in the Bahamas and how systems in that country respond. Specifically, the mother sought to adduce evidence regarding the court system, corruption in the police force, and the inability to ensure the safety of women and girls in the Bahamas based on their gender.

93The OCL conceded the qualifications of Ms. Wallace as an expert. The father objected to the proposed evidence on the basis Alicia Wallace is not qualified to provide expert evidence in the areas proposed by the mother and her perceived lack of objectivity and impartiality. A voir dire as to her qualifications was held, and the following evidence received.

94Alicia Wallace obtained a Bachelor of Commerce from St. Mary’s University in Halifax, Nova Scotia in 2009. She later obtained a postgraduate diploma in 2019 in Gender and Development from the University of the West Indies, Barbados. She explained the diploma was an eighteen-month course offered over two semesters. Each semester had five classes and course requirements consisted of writing four major papers.

95Ms. Wallace is the founder and director of Equality Bahamas. This is a position she has held since 2014. Equality Bahamas is an agency that advocates for the rights of women, LGBTQ+ people, those experiencing poverty, and migrants.

96As part of her work, one of the initiatives she has worked with is the Convention on the Elimination of All Forms of Discrimination Against Woman (CEDAW). This committee reviews United Nations member states reports and prepares a shadow report. Ms. Wallace participated in the drafting of a shadow report for the Bahamas in 2018. She explained a shadow report responds to the Bahamian government report and clarifies points or refutes points that are made. Ms. Wallace participated in the process in 2018 and offered recommendations to the Committee to be considered when making recommendations to the state on whether steps need to be implemented to come into compliance with the Convention.

97Ms. Wallace spoke specifically to one recommendation to criminalize marital rape by amending section 3 of the Sexual Offences Act which currently defines rape but includes the phrase “who is not his spouse”. A further recommendation addressed gender bias in the nationality law that precludes women from passing on Bahamian citizenship to their children.

98Although not in her evidence, it was agreed by counsel the above shadow report is referenced on the Canadian Immigration Refugee Board’s website under National Documentation Packages for the Bahamas. These packages are lists of public documents based on publicly available information.

99Ms. Wallace is actively engaged in advocacy and education regarding equality in the Bahamas, much of which has focused on financial management, and the need to change the law regarding marital rape. Her advocacy and activism work with gender-based violence includes intimate partner violence, domestic violence, sexual harassment, street harassment, violence against women and girls, and sexual violence.

100Alicia Wallace testified that in anticipation of preparing her affidavits for these proceedings, she reviewed articles from several newspapers including the Tribune and the Nassau Guardian and recommendations that have been made to the Bahamas through internal mechanisms including the convention on elimination of all forms of discrimination against women and the universal periodic review.

101Ms. Wallace has no formal legal training regarding the laws of the Bahamas. Her education on this front is based on her activism, advocacy, and self-education. She agreed to be an activist in the Bahamas requires no special training or education.

102She acknowledged having a past relationship with a cousin of the mother, but explained the island is small and crossing paths would not be unusual.

103Ms. Wallace has never been employed or had contract work with the Royal Bahamas Police Force. She participated in one training workshop with police in 2015 called Resistance and Prevention Program. She described it as a five-day training program where she was one of two non-governmental attendees. The purpose of the training was to engage and participate in activities through role play of different scenarios. One of the five days focused on domestic violence and ways officers’ responses could be different. No further information was provided regarding the content of the other four days of the program, its purpose, focus, or other attendees.

104In addition to Alicia Wallace’s viva voce evidence, two affidavits dated October 31, 2024, were marked as lettered exhibits on the voir dire, including her curriculum vitae and her acknowledgement of expert’s duty in compliance with rules 20.1 to 20.3.

105I begin my analysis with whether Ms. Wallace is a properly qualified expert.

106Per White Burgess, the requirement of having a “properly qualified expert” encompasses two parts. First, the witness must be qualified to give the proposed evidence. Second, the witness must be able and willing to fulfill his/her duty to the court to give fair, objective, and non‑partisan assistance: White Burgess, at para. 53.

107Can Ms. Wallace can give fair, objective, and non-partisan assistance? The father relied upon the decision in X. v. Y., 2015 ONSC 7681 where the court found the proposed expert to be bias and lacked independence and objectivity. Trimble, J.’s decision is distinguishable from the case at bar. In that case, the proposed expert was adamant she was an advocate for the children and was not prepared to remain impartial or provide unbiased evidence. The court held she was incapable of discharging her duty to the court and had in fact refused to sign the acknowledgement of the duty of an expert pursuant to the FLR.

108Despite having a prior relationship with a family member of the mother’s, I am satisfied that Ms. Wallace would be able to fulfill her duties to the court and provide evidence that was impartial, objective, and fair. The mere fact Ms. Wallace may have met the mother in passing at a family gathering, and was familiar with her, was insufficient to establish a realistic concern regarding Ms. Wallace’s ability to carry out her duty to the court.

109Turning to whether Ms. Wallace is qualified to give the proposed evidence, the father argued she lacks sufficient formal education to provide opinion evidence regarding the law in the Bahamas, its application, the court system, corruption in the police force, and the ability of the Bahamas to ensure the safety of women and girls. Nor has Ms. Wallace obtained special knowledge or training on these areas through study or on-the-job experience. Therefore, she lacks the qualifications to give reliable expert opinion evidence in this area.

110The mother argued Ms. Wallace meets the basic threshold admissibility criteria to provide expert testimony in this matter. The evidence she will provide is relevant, necessary to assist the trier, is not subject to an exclusionary rule, and is proffered through a qualified expert. The mother anticipates the opinion evidence will focus on what the law has failed to do, how it is being applied, and general attitudes towards women in a male-dominated culture. Ms. Wallace’s evidence should be considered through a “social sciences context”.

111I disagree. A proposed expert must be “shown to have acquired special or peculiar knowledge through study or experience in respect to the matters on which he or she undertakes to testify”: R. v. Mohan, at para. 27. The court stated:

The admissibility of evidence does not depend upon the means by which that skill is acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.

112The Court of Appeal for Ontario, relying on R. v. Mohan, held in R. v. Mills, 2019 ONCA 940, at para. 52:

Expert evidence can be provided by a witness who has “acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: Mohan, at p. 25 (emphasis added). Thus, a witness can be qualified by the court as an expert whether his or her expertise was acquired through on-the-job experience or through formal education (or a combination thereof). Just because that specialized knowledge is gained on the job, sometimes developed through the “accumulated wisdom” of a group of people, does not, on its own, diminish its value (assuming it otherwise meets the other criteria for admission): R. v. Dominic, 2016 ABCA 114, 616 A.R. 356, at para. 22.

113Questions or proof of foreign law must be proven in evidence by expert evidence. This is usually introduced from legal practitioners or scholars knowledgeable about the law of the foreign jurisdiction. Lay opinions are not admissible: Badar v. Danish, 2024 ONSC 3942; Cheng v. Yu, 2017 ONCJ 563.

114In reviewing Ms. Wallace’s professional background, training, education, and experience, it is clear she has focused her career advocating for change on behalf of women and LGBQT+ persons. She is not a lawyer and has little to no experience in policing, the court system, the application, nor interpretation of the laws within the Commonwealth of the Bahamas.

115Ms. Wallace has advocated for change of specific pieces of legislation and her knowledge comes from that perspective. In terms of the court system and her assertion that the Royal Bahamas Police Force is not equipped to protect victims of domestic violence or to apprehend perpetrators, she relied upon reported news stories. In reference to one news story, Ms. Wallace commented that police failures resulted in preventable deaths including Alicia Sawyer and her daughter. I note, however, in the same article, a spokesperson for the police commented that the police were actively looking for the suspect and typically they can intervene in domestic matters.

116In determining the qualifications of an expert, a court must also look at the reliability of the evidence. Relying on news articles is not reflective of circumstances within the court system, the effectiveness or ineffectiveness of the police force, the cause, and whether the Bahamas is able to protect its citizens, specifically women and girls. Other information the mother intends to adduce through Ms. Wallace are bald assertions without a proper foundation.

117I am not satisfied that the proposed expert’s evidence is necessary in assisting the trier of fact. The proposed evidence is based on information in the public domain and not unique to the Bahamas. Some issues faced by women in the Bahamas are also problems experienced in Canada. I am not persuaded Ms. Wallace has special skills, training or expertise through study or experience to provide objective evidence in this matter, consistent with the duties of an expert. While Ms. Wallace may be qualified to provide evidence in other areas, I am not satisfied that Ms. Wallace is a qualified expert to provide an opinion regarding the court system, corruption in the police force, the laws of the Bahamas, its application, and whether the Bahamas is able to ensure the safety of women and girls based on their gender.

E. ANALYSIS OF ISSUES

Issue 1: Pursuant to Article 13(b) of the Hague Convention, is there a grave risk that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation such that this Court is not bound to order the return of the child?

Legal Principles

118Canada and the Bahamas are both signatories to the Convention. Its purpose is to secure the prompt return of children wrongfully removed or retained, and to ensure rights of children and parents are respected in other contracting states.

119The order to return a child to their habitual residence, is not a determination of the best interests of the child, but rather an Order to restore the status quo prior to the wrongful retention. Countries who are signatories to the Convention are jurisdictions that apply the best interests of the child.

120The Convention’s underlying rationale is that disputes over custody of a child should be resolved by the courts in the jurisdiction where the child is habitually resident; child abduction is to be deterred. The Convention presumes that the interests of children who have been wrongfully removed are ordinarily better served by immediately returning them to the place of their habitual residence where the question of their custody should have been determined before their removal. See: Brown v. Pulley, 2015 ONCJ 186 at par. 131 relying on V.W. v. D.S., 1996 CanLII 192 (SCC).

121The legal analysis required under the Convention is a very specific and narrow one. It is meant to protect children from abduction and to discourage parents from following a self‑help remedy. That policy is clearly set out in the preamble to the convention. See: New v. New, 2007 CanLII 17033 (ONSC). In Office of the Children’s Lawyer v. Balev, 2018 SCC 16 at para. 76, the Supreme Court of Canda made clear that the specific elements of the exceptions contained in the Articles must be established, and the application judge does not have a general discretion to refuse to return the child.

122Article 13(b) of the Hague Convention provides a narrow exception to the return of a child to their habitual residence where “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”. The Ontario Court of Appeal made clear that this is not meant to be an in‑depth analysis of the parties’ history, nor is it a re‑do of the court proceedings in the other country. See: Leigh v. Rubio, 2022 ONCA 582.

123The threshold required by Article 13(b) is extremely high; the risk of harm must be grave and intolerable. The grave risk of physical or psychological harm contemplated by Article 13(b) is harm to such a degree that amounts to an intolerable situation. The risk must be weighty and severe. The Supreme Court of Canada in Thomson v. Thomson, 1994 CanLII 26, stated: “the risk has to be more than an ordinary risk, or something greater than would normally be expected on taking a child away from one parent and passing him to another… it must be one of substantial, and not trivial, psychological harm.”

124The use of the term grave qualifies the risk and not the harm to the child. The risk must be real and reach a level of seriousness that it is categorized as “grave”. The level of harm must be such that it is an “intolerable situation”. See: Thomson v. Thomson, supra.

125An assessment of risk involves not only an assessment of the severity of the harm, but also an assessment of the likelihood of it occurring. See: Andegiorgis v. Giorgis, 2018 ONCJ 965 at para. 55; Ojeikere v. Ojeikere, 2018 ONCA 372 at para. 62.

126The Court of Appeal for Ontario in Jabbaz v. Mouamman, 2003 CanLII 37565, elaborated and defined the phrase “intolerable situation” as “an extreme situation that is unbearable; a situation too severe to be endured.”

127In Hassan v. Garib, 2017 ONSC 7227, Engelking J. recognized the high threshold test established under Article 13(b) and relied on the decision of Achakzad v. Zemaryalai, 2010 ONCJ 318. This decision was followed in Habimana v. Mukundwa, 2019 ONSC 1781 and in Stefanska v. Chyzynski, 2020 ONSC 3048. The Court thoroughly considered the facts in that case, which included alleged acts of physical violence, by posing three questions:

(i) Has the alleged past violence been severe and is it likely to recur?

(ii) Has it been life-threatening?

(iii) Does the record show that the father is not amenable to control by the justice system?

128A court may determine that the existence of domestic violence is not a sufficient reason to refuse a return order, because of the presumption that courts of a contracting state can and will provide sufficient protection to the parent. Claims under 13(b) have been rejected when the assaults have been minor or a one-time occurrence. See: Czub v. Czub, [2012] ONCJ 566.

129Courts have also recognized there are some cases where the danger presented by domestic violence is so high that the presumption that the requesting state will be able to provide such protection does not apply. See: Pollastro v. Pollatro, 1999 CanLII 3702 (ON CA), 1999 CarswellOnt 848 (ONCA).

130Even post-Pollastro, many Article 13(b) claims that allege grave risk of harm to a child because of domestic violence directed towards the primary caregiver have failed in Canadian courts. Reasons for refusing the claim vary, but include:

Not being satisfied on the balance of probabilities that domestic violence occurred. See, for example, Ellis v. Wentzell-Ellis, supra, footnote 2, where the abducting mother complained of verbally abusive and drunken behaviour, but not physical assaults or threats. See also Moller v. Despoja-Moller, [ [2001] O.J. No. 5170 (Ont. S.C.); Sierra v. Sierra [2001] O.J. No. 2044, 2001 (Ont. Fam. Ct.).

Findings that the assault alleged was minor or a one-time occurrence. See Finizio v. Scoppio-Finizio, supra, footnote 2, where the court noted that there was only one “physical altercation” (a punch) in an 8-year marriage. Also see Suarez v. Carranza, 2008 BCSC 1187, [2008] B.C.J. No. 1657, (B.C.S.C.), where a push on two occasions was the violence alleged.

Despite the violence alleged, the victim of the assault expressed no fear of the assailant (Suarez v. Carranza, supra), or that the violence alleged is not the reason that the abducting parent declines to return with the child to the requesting state. In Cannock v. Fleguel, 2008 ONCA 758, [2008] O.J. No. 4480, (Ont. C.A.), the court found that the mother did not want to return to Australia because of the hardship that it would work upon other children in her custody.

131In Mbuyi v. Ngalula, 2018 MBQB 176, 2018 MBQB176, the court noted that evidence is generally presented that includes photographs of injuries, third party evidence of violence (including police evidence), medical evidence of injuries, the granting of and in some cases, breaches of civil protection orders or probation orders, criminal charges or convictions for abusive conduct, inability of the efforts of police or authorities to restrain the abuser’s behaviour, the abuser’s disregard for court orders, and abuse of the children to establish an Article 13(b) exception.

132In Brown v. Pulley, 2015 ONCJ 186, the court found that the domestic violence did not reach the level of grave risk of harm. The court found that the mother was also responsible for a large portion of the domestic violence and left her jurisdiction for tactical reasons, as opposed to a fear for her safety. Undertakings were sufficient to address any risk concerns.

133The Supreme Court of Canada, in F. v. N., 2022 SCC 51, identified several concerns for courts to consider when determining the return of a child and the separation from the primary caregiver. See also: A.A. v. Z.S.M., supra at para. 55. F. v. N. was a non-Hague case; however, the considerations are equally applicable.

1. An abducting parent should not be allowed to self-engineer a risk of serious harm. Courts should sometimes be prepared to order the return of children despite a risk of separation from their primary caregiver. Deciding otherwise could allow abducting parents, to rely on their primary caregiver status to circumvent due process for parenting determinations. It could make Ontario a haven for child abductions.

2. Unreasonable refusal to return by the primary parent is not acting in a child’s best interests.

3. The mere fact of abducting the child suggests a failure to act in a child’s best interests.

4. However, a refusal to return may be justified and legitimate. In these cases, the principle against self-engineered harm does not apply.

5. The court should consider barriers to the return of the primary parent.

6. Obstacles may include risks to safety, family violence and employment obstacles.

7. Courts should carefully scrutinize refusals to return when there are no impediments to the parent re-entering and remaining.

8. Separating a child from their primary caregiver can create a risk of serious harm – emotional and psychological. It should not be done lightly.

9. However, such a separation, without regard to the child’s individual circumstances, will not always rise to the risk of serious harm set out in section 23 of the CLRA.

10. The court should consider if the child can be returned to a capable left behind parent in a familiar environment.

11. The minority decision cites Gordon v. Goertz, that stated that disrupting a child’s relationship with their primary caregiver will generally be more detrimental to the child than reduced contact with the non-custodial parent (para. 126)

134With regards to inconsistencies between foreign law and Ontario law, the Court cautioned that simply because foreign law is different than Ontario law, it must not necessarily be seen as a source of serious harm. To do so would encourage forum shopping. Determining what differences are acceptable and what are not is a delicate exercise.

135The proper approach recognizes that inconsistencies between local and foreign legal regimes will usually not amount to serious harm if the best interests of the child principle remain the paramount consideration in all decisions concerning children. However, if the incompatible rule automatically applies in a manner that supersedes the best interests of the child, this will be a determinative factor in the serious harm analysis, when s. 23 is read considering s. 19(a) of the CLRA. See: F. v. N., supra at para 88; A.A. v. Z.S.M., supra at para 53.

136In F. v. N. the court recognized the United Arab Emirates (UAE) law presumptively assigned parental responsibility based on gender which is inconsistent with gender equality in Ontario. However, the trial judge found that these presumptive rules are not automatic and that judges in the UAE ultimately decide custody on the best interests of the child.

137There is a presumption that the courts of a child’s home jurisdiction will be able to make arrangements that will protect a child from harm if the child is returned there, but it is open to the parent who wrongfully removed or retained a child to establish that such arrangements will not be effective or cannot be made. See: Ireland v. Ireland, 2011 ONCA 623, at para. 48; Ellis v. Wentzell-Ellis, 2010 ONCA 347, at para. 50; Finizio v. Scoppio-Finizio, 1999 CanLII 1722 (ONCA), [1999] O.J. No. 3579 (C.A.), at para. 34.

138The onus is on the parent opposing the return. However, this presumption is reversed where the Immigration and Refugee Board (IRB) have found the child to be a convention refugee prior to the hearing of the application. See: A.M.R.I. v. K.E.R., supra.

139When a child has been recognized as a Convention refugee, a rebuttable presumption arises that there is a risk of persecution on the child’s return to the country of their habitual residence. A risk of ‘persecution’ in the immigration context clearly implicates the type of harm contemplated by Article 13(b) of the Convention. See: AMRI v. KER, supra, at para 74. The Court of Appeal held that the application judge erred by failing to undertake an assessment of the risk of persecution if the child was returned, as mandated by the child’s refugee status, the evidentiary record and the child’s s. 7 Charter rights. In view of her age and refugee status, the application judge erred in not properly considering her views.

140In Sabeahat v. Sabihat, 2020 ONSC 2784, the court held that where a child has been given refugee status, a rebuttable presumption arises that a risk of persecution exists if the child is returned to their country of habitual residence. In that case, the mother obtained a protection order from the court and two days later, her home was bombed. Police testified they could not protect her from the father, and she should leave the country. The father did not rebut the presumption and the court dismissed his application for the children’s return.

141The Court of Appeal provides guidance regarding the significance of an IRB refugee determination on a Hague application. At the same time, it acknowledges the differences between the two processes. Proceedings before this Court are more fulsome and transparent, unlike hearings before the IRB, where the left behind parent has no notice, no opportunity to participate, and no opportunity to respond to the serious allegations made. Further, this court is bound by strict evidentiary rules unlike the IRB that is not bound by any legal or technical rules of evidence and may receive and base its decision on untested and inadmissible evidence. See A.M.R.I. v. K.E.R., supra at paras. 72 – 74; A.A. v. Z.S.M., supra at paras. 87, 91, and 106; Kovacs v. Kovacs, 2002 CanLII 49485 (ON SC), [2002] O.J. No. 3074 (S.C.J.).

142It was recently confirmed in A.A. v. Z.S.M. at para. 106 that, “the IRB decision is not determinative of the analysis under ss.23 and 40 of the CLRA.” Although a positive determination creates a rebuttable presumption and is a material consideration, the IRB hearing is held in camera and only considers the claimant’s evidence. Roberts J.A. then referred to A.M.R.I. at para. 73. Courts are reminded to be aware of the potential for the abuse of the IRB refugee determination process by an abducting parent to gain tactical advantage in a looming or pending custody battle.

143The credibility of the party seeking the Article 13(b) exception, is an important determinant in whether the children are to be returned. The quality and quantity of the evidence of the alleged violence and the credibility of witnesses is also important. See: Husid v. Daviau, 2012 ONSC 547, affirmed 2012 ONCA 469.

Analysis

144When this hearing commenced, the onus was on the mother to establish there is a grave risk of harm to the child or would otherwise place the child in an intolerable situation pursuant to Article 13(b).

145During submissions, the IRB released its decision and found the mother, A, and the child to be Convention refugees who faced a serious possibility of persecution in the Bahamas on a Convention ground as members of a particular social group, namely women and girls facing gender-based violence by another immediate family member, specifically the father. Further, the IRB found “that state authorities in the Bahamas are unwilling and unable to adequately protect [the mother] from gender-based persecution” directed at the mother and her family members by the father. Lastly, the IRB held that the mother cannot access or otherwise expect to receive adequate state protection in the Bahamas if she returned to seek it.

146Based on this finding, pursuant to A.M.R.I. v. K.E.R., the onus shifted to the father to rebut the presumption that the return of the child would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

Allegations of Domestic Abuse

147The mother’s claims of abuse by the father, together with the refusal of the Bahamas state authorities to provide protection formed the grounds for her successful claim to refugee status in Canada and form the basis of her claim in these proceedings. The mother claims physical, verbal, emotional, and sexual abuse, throughout the marriage. After separation, the father’s behaviour escalated including stalking, harassment, and more violent physical attacks. The mother was forced to move several times to hide and was terminated from a job due to the father’s repeated attendance at the workplace.

148The mother described incidents of abuse as follows:

• The father would become enraged, yell, and use derogatory language directed at the mother in the presence of the children.
• He sexually abused her throughout the marriage; she did not report this as she understood the laws of the Bahamas do not recognize sexual violence or rape of a spouse a crime.
• The father would use emotionally coercive tactics to punish her when she resisted intimacy. He would become angry and ignore her for days.
• In 2015, the father became physically violent towards the mother, and she became fearful for her and the children’s safety. She believed the abuse was escalating and happening more frequently. Ultimately, the parties had an argument and the father grabbed her by the neck and began to choke her. She could not breathe and tried to break loose from his grip. Eventually he let her go but threatened to kill her by saying, “I’m going to Nellie you.” A fatal incident occurred in the Bahamas involving a woman by that name who was killed by partner. There was extensive media coverage and the mother interpreted this as a death threat. The following day she left with the children.
• The father tracked her down at her mother’s home and repeatedly visited and harassed her. He pleaded for their relationship, cried, apologized, and then would become angry and shout sexual and explicit obscenities.
• Shortly after the separation, the father confronted her at her workplace in the parking lot, brandishing a cutlass and forced her to sign over ownership of the car.
• The mother contacted police as she believed the father had hacked into her phone and email and saved the content on a memory card which included conversations between the mother and a male party. When it was returned all files on the card had been deleted.
• During a parenting exchange in March of 2016, the father tried to choke the mother when she was picking up the children after his parenting time. On another occasion, he grabbed the back of her head and slammed her head into the steering wheel of the car – he broke her glasses, gave her a minor concussion and a black eye/bruised face.
• The father refused to pay child support or contribute to the children’s school fees, dental, and groceries.
• Between 2015 to 2021, the mother moved apartments several times because the father would stalk her and follow her home from work.

149The mother claimed all three children experienced verbal and psychological abuse by the father. The children lived in a state of constant fear and anxiety and were forced to adjust their behavior to avoid provoking the father's unpredictable outbursts. The following incidents were described by the mother:

• He would shout at them or ignore them for extended periods when they misbehaved.
• The father had physically assaulted and punished A from a young age that included belts to spank her that caused welts and bruising to A’s skin.
• The father is alleged to have assaulted A at school in front of her teachers and assaulted A on another occasion when she took a cell phone to school.
• On September 5, 2021, the mother received a WhatsApp message from A requesting to be picked up. At 12:19 p.m., the child sent a text via Skype that the father was beating A and requested the mother pick them up. Police were contacted and the mother was directed to take A to the hospital to have a medical form completed. I will discuss this incident in greater detail below.

150A described her parents’ relationship prior to their separation as abusive and volatile. She recalls the father would scream and shout at the mother and witnessed him putting his hands on her neck on one occasion when she was seven years old. A’s relationship with her father deteriorated as she reached her teenage years. She experienced emotional and physical abuse from her father. She felt he took his anger out on her. She described the following incidents:

• A had failed to remove a jacket from her head at school due to feeling insecure about her physical appearance that day. The father was contacted and attended the school and grabbed her by the shirt and lifted her up to his face and threatened to beat her with his belt.
• The following day, the father attached his belt to her school bag to remind her of his threats. He told her teachers if she misbehaved, he would “beat her into pieces at the end of the day” with the belt. A was humiliated and fearful for the day.
• On one occasion they were doing homework, and she was laughing. The father got angry with her as she continued to laugh and retrieved a belt and hit her in the chest and leg area.
• As further punishment, the father refused to give her lunch money the following week. She was ashamed and afraid to tell anyone and relied on friends for food.
• Often, the father would give her the silent treatment and not speak to her.
• Things came to a head on September 5, 2021, when the police were contacted, as the father violently assaulted her. She did not have any further contact with her father after this incident.

151After the September 5, 2021, incident there was no contact between the children and the father until December of 2023, when the father initiated further proceedings in the family court. The Court ordered visitation between the father and the child on alternate Saturdays. With the reintroduction of parenting time, the father’s aggressiveness escalated and included threats towards the mother. Examples include:

• Glaring at the mother and her new husband at parenting exchanges and showing open hostility.
• Aggressively and forcefully opening and closing the car doors at these exchanges.
• Sending the child home with a toy gun loaded with foam bullets. The mother interprets this as an indirect threat.

152The father’s continued coercive and controlling behaviour since separation and the mother’s arrival in Canada includes:

• Using the court system in the Bahamas and Canada to engage in “post-separation” litigation abuse to punish her.
• Attending at the child’s school in the Bahamas to obtain a copy of her registration form.
• Contacting the child’s therapist and seeking copies of her records for use in these proceedings.
• Requesting disclosure of the child’s immigration and refugee proceedings.
• Requested virtual parenting time with the child.
• Requested copies of her school enrollment forms.
• Submitted unsolicited materials to the IRB regarding the child’s refugee proceedings.

Failure of the State

153The mother stated the Bahamian police force, and the courts will never protect her or other women experiencing domestic abuse in the Bahamas. The efforts she claims to have made over the years with no action or assistance are:

• The mother reported the 2015 incident to the Wulff Road Police Station.
• The mother attended the South Beach Police Station on two occasions to file reports regarding the two separate assaults in 2016.
• In 2017, the mother attended the Cable Beach Police Station to file another report against the father hoping to escalate it to obtain a protection order.
• The police failed to properly investigate the incident on September 5, 2021, with A.
• In January of 2024, the mother attended the police station to apply for a restraining order. She brought the foam toy gun as proof of the father’s threats.
• The mother reports that all police records of her complaints have been destroyed or removed from the data base.
• Both family lawyers she retained refused to follow her instructions. The history of domestic violence has not been put before the family courts in the Bahamas.
• There are no safe houses or government resources for women experiencing violence in the Bahamas.
• The child protection system failed to protect her and the children as it took more than two years to investigate the September incident.

Evidence in Rebuttal

154In this case, 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 hearings 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 rebuttal presumption has arisen due to the IRB findings, I am not bound by its decision and rely on the evidence before me.

155The 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 the evidence of Shantelle Munroe 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 Bahamas.

156Ms. Munroe has practiced law in the Bahamas for fourteen years with a focus on family law and domestic violence. She teaches a course entitled Trial Advocacy at the Eugene Dupuch Law School, is the Chair of the National Insurance Appeal Tribunal Board, and most recently sat on a panel on Domestic Violence which included speakers from the Royal Bahamas Police Force Domestic Unit, social services, and other legal professionals.

157Ms. Munroe testified and provided the following evidence:

• The commonwealth of the Bahamas has several pieces of legislation to address domestic violence and child abuse, including the Domestic Violence (Protection Orders) Act, 2008, Chapter 99A of the Statute Laws of the Commonwealth of the Bahamas (DVA) and the Child Protection Act, 2007, chapter 132 of the Statute Laws of the Commonwealth of the Bahamas (“CPA”).
• The overriding objective of the Bahamian courts is to ensure the best interest of the child, including their welfare, is protected and that persons are protected from domestic violence and harassment. The welfare of the child is the primary and first consideration. The court has a duty to ensure the course that is followed “will be that which is most in the interest of the child’s welfare”. Section 3 of the CPA identifies the factors a court must consider when determining the best interests of the child.
• The Domestic Violence Act (“DVA”) includes provisions for urgent ex-parte interim orders of protection in circumstances of domestic violence, or occupation (exclusive possession of the home), or related matters. Section 2 of the DVA defines domestic violence as including “physical, sexual, emotional or psychological or financial abuse committed by a person against a spouse, partner, child, or any other person who is a member of the household or dependant”.
• The definition of spouse in the DVA includes a former spouse.
• The DVA defines emotional or psychological abuse to include patterns of behaviour of any kind that seeks to undermine the emotional or mental wellbeing of a person. It also addresses issues of financial abuse, harassment, and physical abuse.
• Section 3 of the DVA sets out the test, on a balance of probabilities, to obtain a protection order restraining a person where a person has engaged in or has threatened to engage in conduct that can constitute domestic violence or an attempt to commit domestic violence, including harassment. Section 4 sets out the process by which one may apply to obtain a protection order. An interim order may also be obtained based on viva voce evidence or affidavit, and there is no requirement for corroboration.
• Urgent matters can be heard within 24 to 48 hours of an application being made. The courts have a duty roster judge which is on the Bahamas courts website and contains a calendar identifying which judge is responsible for hearing urgent applications. This is done so everyone is aware who is available to hear urgent matters on any given day on an expedited basis.
• Most protection orders are heard ex-parte in the first instance and an interim order is granted. Thereafter, service of the order on the responding party must be completed within fourteen days for a full hearing. If the responding party is unable to be served, the court will hear evidence regarding the reasons for non-service and may extend the interim order or decide in the responding party’s absence.
• In circumstances where child abuse is alleged both the DVA, and the CPA are applicable. Part VI of the CPA addresses the care and protection of children and supervision orders. Social services are responsible for conducting investigations into child abuse in addition to police. Parents, teachers, police, and medical practitioners are expected to report child abuse, but members of the community or strangers may also file complaints.
• Corporal punishment is permitted in the Bahamas pursuant to the Penal Code. However, the DVA and the CPA would result in the removal of the children who are abused or alleged to be abused. The DVA defines physical abuse and refers to offences in the First Schedule of the DVA which include assault and battery. Children are defined as under the age of 14 and young persons are between the ages of 14 to 16 years old.
• If a parent threatened to “beat their child to pieces”, legally it would be a threat of harm or threat of death that would fall under the DVA. It could also fall under s.63 of the CPA and under the Penal Code. Legally there are several avenues that can be pursued. Equally, picking a child up by their shirt or striking them with a belt would constitute assault and battery under the DVA.
• The DVA has provisions that permit protection orders to protect children from financial and emotional abuse.
• There are many avenues available to victims of domestic violence and legal protections. This includes protection orders, exclusive possession of the home, order to ensure the aggressor continues to pay school fees, mortgages, taxes, rent, and other household expenses.
• There are several ministries and agencies, both private and public that include the Women’s Crisis Centre, the Child Protective Unit, Family of All Murder Victims (FOAM), the Ranfurly Home for Children, Bahamas Against Sexual Violence and Child Abuse, and the Suspected Child Abuse and Neglect program (SCAN). She explained there are structured shelters as well as private entities that provide housing at reduced rates to assist victims of domestic violence.
• The Royal Bahamas Police Force has a Domestic Violence Unit that is operational and liaises with all entities within the government and private sector.
• In situations where both parents are alleged to have abused the child and there are no suitable family members for the children to be placed with, there are twelve separate facilities on the island. The Ranfurly Home for Children recently created a section for children who have aged out to provide them an opportunity to put their lives together without being turned out of the home when they turn 18.
• If a child is returned to the jurisdiction, and their primary caregiver is not there, and there are allegations of abuse by the other parent, courts will look if there are other family members available or willing to take the child. If not, the child would be placed in care with orders that permit them to receive benefits and attend school.
• In family proceedings where there are abuse allegations, social services would speak with the child and provide the views of the child and information to the court. Judges may also speak with the child in chambers. The courts provide a heavy weight on the views of the child.

158The above evidence demonstrates the Bahamas has 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. 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 Bahamas.

159On this basis alone, I am satisfied the father has rebutted the presumption of a grave risk of harm if the child is returned to the Bahamas.

160This is not the only evidence that contradicts the versions of events claimed by the mother and I have concerns regarding her evidence. The mother’s allegations of abuse, on its face, are very serious. However, there are inconsistencies between the evidence before this court and the findings of the IRB. There is inconsistent evidence regarding the incident of September 5, 2021, between the mother and A. There is a lack of corroboration of much of the mother’s claims and where she relies on emails or messages, the evidence is incomplete and, in some cases, misleading.

161In analyzing the mother’s evidence, I begin with the incident of September 5, 2021. The events on this date were the catalyst for the father having no contact with the child for 27 months and were the focus of the IRB’s decision.

September 5, 2021 Incident

162I am satisfied that an incident occurred on this date between the father and A that involved the police. Z.B., the child, and her younger half-brother, were all in the home.

163The only persons who know exactly what happened in the bedroom are the father and A. Based on the evidence before me, I reject the father’s version of events.

164A stated she was 16 years old and was woken up by the father who called her downstairs. He questioned her regarding the use of tomato sauce from the previous night. She explained she made dinner for herself. After this exchange, she returned upstairs to go back to sleep. The father followed her and asked why she had not cleaned up her dishes afterwards. She replied she was too tired. This led to the father telling her it was her responsibility to do the dishes and as a child she was to follow directions and stay in her place. A questioned why he treated her like this, and he began shouting at her that she has a duty to contribute to the house.

165A described the physical actions of the father:

• The father grabbed her by the shirt and threw her up against the wall.
• While holding her shirt he screamed in her face.
• He let her go and walked out of the room and A sat on the floor in shock about what had just happened.
• Once the shock wore off, A started screaming and crying.
• The father returned and lifted A up by her shirt again and directed her to clean her room and pack her things.
• While being held in this manner, A noticed his hand balled in a fist. A was concerned he may punch her.
• After he released her, A cleaned her room and texted her mother for assistance once her father went back downstairs.

166The independent and corroborative evidence regarding this incident is:

• A sent a series of messages thru WhatsApp at 12:10 p.m. asking her mother to come and get her. In the message, she stated she asked her father about the dishes and stuff he makes her clean and he grabbed her by the shirt and “bam and my head to the wall”.
• At 12:19 p.m., the child sent a message to the mother asking her to come get them early because “daddy beat A [spelled out in the message] and she crying”. A missed call came in nine minutes later from the child.
• The mother attended the Carmichael Road police station to seek assistance from the police.
• The police attended the father’s residence and took statements from the different participants at the police station.
• A Royal Bahamas Police Force form was given to the mother to have completed by the hospital regarding A.
• The officer-in-charge, P.C. McKinney noted the injuries on the form as “scratches to the lower left neck and bruises to the back of the head because [she was] pushed into the wall several times”. The form was dated September 5, 2021, at 3:53 p.m.
• The mother attended the Advance Medical Clinic with A the following day.
• A form was completed by Dr. Chinyere Carey-Bullard at the Advance Medical Clinic. The form has three direct areas of inquiries plus a space for remarks. The three areas of inquiries are: i) Nature if Injury; ii) If Serious; and iii) If likely to terminate fatally.
• The form is silent on who provided the information regarding the information. However, the responses to the three areas of inquiry are: i) Nature if Injury - “attacked by father yesterday was “stuffed” up and thrown to the wall, hit head may have loss consciousness for a brief moment”; If Serious – No; If likely to terminate fatally – No.
• The physician made the following notes under remarks: 1) tender area over occipital region of scalp; 2) tender over left cheek on face; 3) bruise noted over left collar bone near nape of neck; and 4) tender over abdominal area.

167The mother has recounted the incident to several people on different occasions. She was not present during the incident. Her recounting of what occurred in the father’s house is hearsay. I do not accept her evidence on this for the truth of its contents, however, I cannot help but note the significant changes in the described facts of the incident and A’s injuries that do not align with what A described of what happened. I cannot and do not accept the mother’s story. She has embellished and exaggerated the injuries to A on each retelling.

168Her most recent versions are reflected in what she told L.G. and Carolyn Perpall, the author of the report prepared in April of 2024 for the court in the Bahamas. The information provided by L.G. is hearsay and is not admissible for the truth but assists the court in assessing the credibility of the mother in her repeated retellings of the incident and the increase in the violence attributed to the father. The mother’s story:

• The father beat A in front of the child;
• He slammed A against the wall and repeatedly hit her in front of the child;
• A had swelling on the back of her head, cuts around her neck, and bruises to her body;
• A received a concussion;
• A was knocked out and left unconscious;
• A was covered in blood on the ground.

169A does not say she was beaten or slammed against the wall repeatedly. The child was present in the home but downstairs in the kitchen, not upstairs in A’s bedroom where this occurred. There is no evidence of swelling to the back of A’s head. Upon attending at a medical clinic the following day, the injuries noted consisted of bruises on her left collar bone near the nape of her neck. This is consistent with what the officer observed the previous day. Tenderness to other parts of her body were noted but are not necessarily attributed to the assault. There is no evidence anywhere that A was covered in blood or that she received a concussion. As stated above, there is no evidence before this court who provided the information to the doctor at the clinic who noted A “may have lost consciousness”. A did not state that she lost consciousness.

170Despite the serious injuries and concussion alleged by the mother, she failed to take A to the hospital or seek medical attention. When she finally did take A for an examination, it was to the Advance Medical Clinic the following day.

171There is no question the event and actions of the father are serious and warranted an investigation. However, if the injuries were as serious as described by the mother, A should have been taken to a hospital immediately. The mother stated the medical clinic referred her to the hospital to confirm if A had suffered a concussion. There is no indication of this on the medical form completed by Dr. Carey-Bullard.

172I have no evidence from the initial investigation and no information what A told police happened. This would be of assistance in determining what steps the police took or failed to take. I refuse to speculate.

173The mother faults the police and the state for delays into the investigation of this incident. There is no evidence of any follow-up or concerns regarding the delay by the mother until January of 2024, when family proceedings recommenced in the Bahamas.

174What is evident, is the completed medical form was not provided to police until January of 2024. The mother claimed the evidence was lost as the file was transferred. There is no evidence the file was transferred. The mother claimed she was unable to obtain A’s hospital records due to systemic barriers. There is no evidence she ever took A to a hospital other than her claim to have done so. When the police asked about the medical form, the mother directed them to the medical clinic only. She did not direct the police or provide them with any information or details about a hospital attendance.

175Due to several internal inconsistencies within the mother’s own affidavit, questions arise regarding her credibility and reliability. This should not be interpreted as diminishing the seriousness of the incident of September 5, 2021, but raises questions regarding what information was initially provided to the police regarding the incident itself.

176Upon receipt of the medical documentation from the clinic in January of 2024, the police arrested the father and forwarded the matter to the prosecutor’s office for review. The certified documentation showed the father has no criminal record. The prosecutor exercised its discretion and opted not to prosecute but referred the father to attend anger management, parenting classes, and counselling. This court is aware of similar processes in the criminal justice system in Ontario, where an accused person has no prior criminal record, charges may be diverted, withdrawn, or stayed for several reasons.

Other Considerations:

177When I examine the mother’s evidence, I have concerns regarding the veracity of some of her claims when looked at with other independent and/or documentary evidence.

Harassment and Stalking

178A stated the father was not permitted to know where they lived, and the mother always did the pick ups and drop offs. The mother claimed she had to move repeatedly after separation as she did not want the father to know where they lived. This is contradicted by messages exchanged in 2021, where she asked the father to drop the child at her place as she could not get there in time to pick the child up from the father. Further, the father was aware of the mother’s relationship and where she lived throughout 2018 to 2019. When the relationship ended and the mother moved out in late August of 2019, she asked the father to keep the children longer as her new apartment was not ready.

179The mother claimed there were repeated and harassing phone calls. The evidence relied upon was for one day shortly after separation. The “repeated” attempts to force the mother to reconcile with the father were three emails sent within a six-minute span the week after they separated. He pleaded for her to attend counselling with him and not give up.

180The mother also relied on an email exchange on April 15, 2016, to demonstrate a pattern of post-separation control to harass and stalk her. The email exchange was the father inquiring when he could expect monies owed to him from her.

181In many of the exchanges, the mother speaks her mind, and the tenor does not suggest she was concerned her messages would trigger or cause an angry reaction.

182Many of the exchanges presented by the mother are excerpts of conversations that does not permit a fulsome assessment of the conversation but only a snapshot. In some cases, the snapshot was taken out of context which was made clear when the father produced the entirety of the exchange or a more fulsome version.

183The mother claimed she was terminated from her employment because of the father’s persistent harassment. At one point, she stated this occurred in July of 2014. Elsewhere in her materials she says it was in 2016. Aside from her claim, there was no independent evidence to support this.

Bad Character Evidence of the Father

184The mother sought to introduce evidence alleging criminal antecedents of the father. She produced an excerpt from an email purportedly from a member of the Bahamas police force. The name of the sender is redacted. There is no admissible evidence to indicate where the content of the email comes from and its legitimacy.

185The father produced a certified criminal record check dated October 18, 2024, that confirms he has never been convicted of a criminal offence in the Commonwealth of the Bahamas.

186The mother claimed the father was fired from his job in 2012, but there is evidence that confirms he has been employed with the same company for over twenty years.

Bahamas Police Force

187The mother relies on the refusal and corruption within the police force to protect her and the children from the father.

188The mother claims to have filed four separate reports to the police regarding physical assaults perpetrated by the father. These reports were filed at three separate police stations. All reports have gone missing. The mother stated she filed a corruption complaint in early 2024. The mother presented no independent evidence to support her claim. She maintains the police turn a blind eye and would not assist her.

189Contrary to this, both the father and the mother stated the police cautioned the father regarding stalking. He was warned to give her space. Not only did the father acknowledge this in his affidavit, but a written exchange from the mother to the father confirms this where she wrote, “even the police officer requested you give me a break from this constant requests and talking”. On another occasion, the father was instructed by the police to return a memory card that contained emails and correspondence from the mother’s phone which he did, although the mother claimed the content was deleted. It is difficult to reconcile inaction on the part of the police where allegations of serious violence are made, yet they are quick to respond and take action to caution the father regarding his behaviour and order the return of a memory card.

190The mother also referred to two other occasions where she sought the assistance of police. The first involved the return of the car to the father shortly after separation. The mother claimed police advised it was a matrimonial property issue. The second was the complaint of a threat to her safety by the father giving the child the toy gun. The mother sought to rely on hearsay and speculation regarding the gift of the gun. Importantly, the information presented on behalf of the child in these proceedings was silent on the toy gun.

191While the mother may have attended the different police stations, I have concerns about what was reported. If she failed to advise the police of the serious allegations of physical violence, how can they respond and help. If she did report the violence, this is extremely problematic and runs contrary to the steps taken within the Bahamas police force by creating a specialized taskforce to address domestic or intimate partner violence and the introduction of legislation in 2007 and 2008.

Courts in the Bahamas

192Based on the evidence before me, I am not satisfied that the courts and/or the state is unable or unwilling to protect its citizens. To the contrary, the family court proceedings have done just that.

193Between September 5, 2021, and December 13, 2023, the consent court order of November 24, 2020, remained in effect. The mother stated she went into hiding and the father did not seek to enforce it during that time. The father had the matter return to court in December of 2023, where he sought sole custody. The Court refused to grant the father primary custody or to reinstate the earlier court order of equal parenting time on a two-week rotating schedule. Instead, the Court only permitted the father parenting time on alternate Saturdays for eight hours. The Court also ordered a complete Custody/Access Report be prepared by the Department of Social Services, Children, and Family Services Division.

194In April of 2024, the Court revisited the interim order and increased parenting time for the father, to alternate weekends only. This demonstrates a graduated increase of parenting time, permitting the child to reestablish a relationship with the father after the two-year absence.

195The mother stated the father was the one who filed the divorce application in 2019. However, the decree of filing lists her as the Petitioner and him as the Respondent. She claims this is because the father said she deserted him and therefore she was considered the party who had initiated the divorce. This is contrary to the Petition and affidavit of the mother dated May 2, 2018, which established she filed for divorce, sought custody of the children, support, and a property adjustment order.

196The ground for the mother’s petition was that the Respondent (the father) deserted the Petitioner. The mother alleged there were daily arguments and disagreements; that she made efforts to repair the marriage, but the father was not interested in remaining in the marriage; and the father assaulted her physically resulting in her moving out of the matrimonial home in September of 2015.

197The mother’s claim that the father was not interested in remaining in the marriage is contrary to the evidence she relied upon in her affidavit in these proceedings. The mother relied on text messages and emails where the father pleaded with her to attend counselling in hopes of a reconciliation as post-separation harassment and abuse. There is other correspondence that also contradicts the mother’s petition and makes clear that she is the one not interested in repairing the marriage.

198The mother claimed two separate lawyers who represented her in the family proceedings advised her not to pursue claims of abuse. No evidence was adduced on behalf of the mother from either lawyer to support her position. She also stated both lawyers refused to follow her instructions. The mother’s petition for divorce contradicts this and includes an allegation of a physical assault that occurred in September of 2015.

199The mother failed to seek assistance and legal remedies from the courts in the Bahamas yet asks this Court to accept the findings of the IRB that the Commonwealth of the Bahamas and the Royal Bahamas Police Force cannot protect her.

Desire to Leave the Bahamas

200Evidence was led that the mother had sought to relocate to Canada as early as 2012. She raised the subject with the father at that time. In 2020, she told her eldest daughter she would like to move to Canada but the father would not agree to her moving with the children so she will have to wait until they age out. In 2024, the mother raised the issue with the father of leaving the Bahamas so the child could progress and have a more competitive environment for sports.

201The mother met her current husband in November of 2023. It was a whirlwind relationship. She introduced him to her children in March of 2024 and they were married less than a month later. Three months after the marriage, the mother relocated to Canada with L.G., A, and the child.

Conclusion

202Most cases of domestic and intimate partner violence occur in the privacy of the home behind closed doors. This leads to he said/she said situations with competing versions and no witnesses. It is also why such cases are often difficult to prove. In this case, several instances of abuse were alleged to have occurred in public places including the mother’s workplace.

203Despite this, no evidence was introduced to support the mother’s claims. There are no affidavits from co-workers, her former employer, teachers from her daughters’ schools, the lawyers involved in her case, photographs of injuries, and/or documents. Unlike Borisovs v. Kubiles, 2013 ONCJ 85, where there was admissible evidence corroborating abuse by the husband and corroboration of police inaction filed with the court, there is a significant absence of evidence here. This is not to suggest there must be corroborative evidence. However, given the credibility concerns highlighted above, which are only some examples of issues raised in the mother’s evidence, which show the mother exaggerated and embellished, I approached her evidence with caution.

204The allegations of domestic violence in this matter are contested. I have determined there were physical assaults committed against the mother. I am also satisfied on the evidence there were physical assaults on the father. The last incidents of physical violence were over eight years ago. I am satisfied based on the evidence before me that I can properly assess whether there would be a grave risk of harm if R was returned to the Bahamas. In so doing, I have considered Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1 at para. 143, where the Supreme Court of Canada noted that even one incident of family violence can have an impact on children.

205I have considered the questions set out in Hassan v. Garib. First, I must decide whether the past violence was severe and if it is likely to reoccur. The allegations of abuse brought by the mother are historical in nature. The physical assaults occurred in 2015 and 2016. The incidents as described are serious as are the threats. However, there were no further incidents of physical violence perpetrated against the mother since 2016. Both parents have moved on and have been in new relationships. The father has been with his current partner since 2018. The likelihood of the past violence recurring is highly unlikely.

206In addition to the abuse suffered by the mother, there is evidence of physical violence towards A. The child did not witness this abuse directly but is aware of it. There is no evidence that the father has ever used corporal discipline or abused the child. This does not diminish the fear the child may have that the father could impose similar acts of violence towards her, but I find it unlikely.

207The mother argues the child is now the same age A was when the father began to abuse A. I must assess the severity of the harm and the likelihood of it occurring. There is evidence from A and others that she was not the easiest child to parent. This is not an excuse for the father’s behaviour on September 5 but one factor I must consider in determining whether his actions would occur towards the child. When looked at closely, the incident on September 5 was not severe based on A’s evidence about what happened. The father acknowledged he did not handle the situation in the best way and has sought counselling to assist him being a better parent. I am satisfied further incidents are unlikely to occur in relation to the child. The father has since taken anger management and counselling.

208Second, I must consider if the abuse was life threatening. The allegations of the mother, if accepted in its entirety, given the historical nature, are not life threatening in the context of what this court must decide. This case is very different, and the facts here are far less serious than Sabeahat v. Sabihat, where the danger was immediate.

209Third, I must determine whether the father is amenable to the control of the justice system. The father has been steadily employed at the same company for twenty years. He has exercised his parental rights within the court orders made by the Supreme Court of the Bahamas and the Ontario Superior Court of Justice. He has retained counsel to represent him on these proceedings, matters in the Bahamas, and to attempt to participate in the IRB hearings. His actions demonstrate he is prepared to abide by the law and operate within its confines.

210I have also considered the issue of separation of children from a primary caregiver. Until 2021, both parents were primary caregivers. I am cognizant of the bonds between the child and the mother and A. The cases where the courts have placed a higher emphasis on the impact of psychological harm to the child are situations where the child was under the age of 5. Most recently, in A.A. v. Z.S.M., supra at para 55, the child was 19 months old and still breastfeeding. I appreciate there will be some discomfort in being separated from the mother and A, however, the courts in the Bahamas are equipped to determine what is in the child’s best interests and this court should not displace its authority.

211The mother’s position that the child would be at a grave risk of harm if ordered to return to the Bahamas is incongruous with the evidence that despite these concerns, the mother chose to leave the child with the father for an entire week in June of 2024. If the mother truly believed there was a grave risk of harm, and the visits with the father were so detrimental to the child’s well-being, she would not have extended the additional parenting time. I have no evidence to explain her actions. She failed to address this in her evidence when she had an opportunity to do so.

212For these reasons, I am not satisfied there is a grave risk that the return of the child would expose her to physical or psychological harm, or place her in an intolerable situation, collectively or independently.

213I turn now to whether an exception to her return has been established pursuant to Article 13(2).

Issue 2: Pursuant to Article 13(2), is the Court satisfied that the child objects to being returned and that she has attained an age and degree of maturity such that the Court should take account of her views? If so, should the Court refuse to order the return of the child?

Legal Principles

214This an exception to the general rule that a wrongfully removed or retained child must be returned to his or her country of habitual residence, but it should not be read so broadly that it erodes the general rule. The application judge’s discretion to refuse to return a child to the country of habitual residence arises only if the party opposing return establishes that the child:

(a) objects to return, and

(b) has attained an age and degree of maturity at which it is appropriate to take account of their views. See: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, para 76.

215Article 13(2) creates a separate stand-alone defence to the return of a child under the Convention, independent of an assertion of grave risk of harm in Article 13(b). The rebuttable presumption does not apply to this exception. The onus is on the party opposing return.

216In Balev, at para. 80, the Court emphasised the test for considering a child’s objection under Article 13(2) must be fact driven. Courts should assess the child’s objection in a straight‑forward fashion, without imposing formal requirements or conditions not present in the text of the Convention. If the elements of Article 13(2) have been established, the application judge has a discretion 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”. See: Balev at para 81.

217In Ludwig v. Ludwig, 2019 ONCA 680, at para. 39, Tulloch J.A., in commenting on Article 13(2), wrote in a unanimous decision that, “Even if the party opposing return can prove both of these elements, the court is not required to refuse to order the child’s return. Instead, the court has a discretion to do so.”

218When considering whether the two conditions have been met, courts have considered the following principles (See: Silva v. da Silva, 2018 BCSC 788)

a) The views of the child are not determinative;

b) The decision must be based on all of the evidence, including the nature, strength and reasons for the objection;

c) The child’s views should be his or her own and not based solely on a desire to stay with the abducting parent;

d) The judge must consider the child’s welfare;

e) The policy considerations underlying the Convention are an important factor;

f) While there is no minimum age, the older the child the more weight the objections are likely to carry; and

g) The child’s views can prevail even if circumstances are not exceptional.

219In Silva, the court was satisfied the child had attained an age and maturity at which it was appropriate to take his views into account but found his views should be given little weight. While the child’s desire to stay in Canada was genuine, the evidence suggested his reasons for staying may not be his own and that he was not sufficiently mature to appreciate the significant consequences of not returning to Portugal, including impacts on his welfare. When weighed against the strong policy considerations underlying the Convention, these views were not enough to persuade the Court to refuse an order for the child’s immediate return.

220In England v. England, 2005 ONCJ 89, the court set out the following "earmarks of maturity" at para. 12:

1. whether this child had made good decisions of a substantial nature for herself in other situations;
2. whether she had the ability and opportunity to, and in fact had reasonably weighed the more important competing benefits and disadvantages in reaching her decision;
3. whether her decision was reached with a reasonable measure of independence;
4. whether her fears relating to returning to the home state appear reasonable, in the circumstances;
5. whether she has considered scenarios for living arrangements in the other country; and
6. whether she had thought of the potential consequences to her relationship with the parent seeking her return if she was allowed to stay.

221In J.E.A. v. C.L.M., the basis of the child’s objections was abuse by the father. The court was concerned the objection of the child to remain was not free of influence whether consciously or unconsciously. The trial judge held that “one must take a careful look at the background leading up to the expression by the child of her wishes.” The Nova Scotia Court of Appeal agreed that to give effect to the child’s objections in these circumstances would undermine the objectives of the Convention. It would virtually mean that in every case the child could simply state, "he/she did not wish to be uprooted and wanted to stay where they were" and that such an expression would prevail. See: J.E.A. v. C.L.M., 2002 NSCA 11, 2002 NSCA, para. 11.

Application

222The OCL argues that the child is old enough and mature enough to be the deciding factor in her return. She has expressed clear and consistent wishes not to have contact with her father or to return to the Bahamas. The basis for objections to being returned are her connections and ties to her mother and A, and her experiences of family violence perpetrated by her father. The child has expressed feeling happier knowing she is far away from her father.

223The father argued that the child was home schooled for two years, attended school virtually before that, and only recently returned to in-person classes. The child is not mature for her age and has been influenced by the mother.

224An affidavit of the OCL clinician, Roy Reid, sworn October 28, 2024, was filed with the Court. Mr. Reid has over thirty years experience in social work and has been a member of the OCL clinical panel since 2004.

225The clinician met with the child on five occasions in the presence of the OCL counsel, Ms. Austin. All meetings with the child were conducted at her school.

226The clinician stated he obtained or attempted to obtain information from the parties and third-party collaterals. The three third-party collaterals he attempted to contact were all located in the Bahamas. This included the author of the Custody/Access Report prepared in April of 2024, Carolyn Perpall; Dr. Marie Allen, a counselling psychologist; and Dr. Michelle Major. He was unsuccessful in obtaining information from the collateral sources in advance of this proceeding.

227The clinician reported the following:

• The child lives with the mother, A, and her stepfather, in Toronto.
• The child is 12 years old and enrolled in grade 7 in a school in Toronto.
• The child identifies as Black and Bahamian.
• The child enjoyed riding horses in the Bahamas but other than that there was not much else to do.
• The child described her relationship with the mother as very caring and rated it a perfect score.
• The child described her relationship with A as very close and they have always lived together.
• The child described her relationship with M as distant. They use to be close but it changed after September of 2021.
• The child described her relationship with her younger brother as okay.
• The child similarly described her relationships with each of her step‑parents (L.G. and Z.B.) as okay.
• The child misses her friends in the Bahamas but does not miss anything else.
• The child does not have any memories of her parents living together.
• The child remembers having two weeks with the father and two weeks with the mother. All three siblings had the same parenting schedule until M moved out.
• The child described concerns about the father knowing where they lived so the mother always did the drop offs and pick ups.
• The child indicated the father has never hit her, however he did threaten to spank her one time for writing on the walls.
• The child stated she had slight memories of the father hitting the mother and believes she was 4 or 5 years old.
• The child expressed her relationship with the father changed after the incident in September of 2021 when he attacked and choked A. She is fearful that he will do this to her.
• The child started having visits with the father between December of 2023 to June of 2024. She described the father as trying to “buy her love by buying toys and stuff”.
• The child had one video visit with her father the day before this affidavit was sworn. The child told the clinician she did not want any further calls and does not wish to have any contact with the father. She expressed concern he could learn where she is and take her away.
• The child consistently expressed that there is nothing the father can do to fix the relationship or to reduce her fear that he will hurt her.
• The child indicated if the court orders her return to the Bahamas and her mother does not come with her, she would be devastated and worried about her safety. She would want to live with her uncle Nathan until she could live with the mother and A. The child has not spoken to her uncle since before she came to Canada.
• The child stated her thoughts are her own and denied anyone spoke to her about the case or influenced her views about her relationship with the father.

228In this case, the child objects to being returned to the Bahamas. I must now determine whether to exercise my discretion and refuse to return the child if I am satisfied, she has reached an appropriate age and degree of maturity where her views can be considered. Even if I am satisfied, the Court still has the discretion to decide whether to return the child.

229The legal jurisprudence has not set a definitive number in determining what is an appropriate age at which a child’s views should be considered. It has also not stated the degree of maturity required before considering the child’s views. The decision in England provides some factors to consider in assessing the child’s maturity.

230In the context of a child refugee, A.M.R.I. confirmed the “views of the child gain greater importance”. See A.M.R.I. v. K.E.R., supra at para 109.

231The OCL relied on Harley v. Harley, 2023 ONSC 2563, where the child objected to being returned to Ohio. The child expressed concern regarding the disrepair of the father’s home, loaded weapons, tracking and recording devices, a lack of support when bullied at school, and fear of the father.

232I am cognizant that the child has expressed a desire to remain in Canada with her mother and sister, and this is an important factor when considering the issues raised on this application. In assessing the child’s objections to being returned to the Bahamas, I have looked at the evidence introduced in the time immediately before the mother removed the child from her habitual residence.

233The Supreme Court of the Bahamas ordered the custody/access report be prepared. The report was prepared by Carolyn Perpall. She interviewed both parents, the child, L.G. (the stepfather), and the principal of the school the child attended.

234The report concluded there was extreme disfunction between the parents with limited communication. The parents created an unhealthy environment that resulted in an emotional imbalance for the child, who did not want to feel negative about either parent. The child was caught in the middle of the mutual resentment of her parents and did not want to choose between them. The parents have failed to ensure the child is not harmed or affected by their respective behaviour. The father’s temperament is a factor to be considered. The actions of the parents have resulted in a dysfunctional family environment with estrangements created between the siblings adding to the stress for the child. In addition, the mother’s new relationship has added to the disfunction.

235Since the preparation of this report, the child was removed from the Bahamas with no contact with the father. There has been less than six months between the interview with Carolyn Perpall and the meetings with the clinician. There is no evidence to reconcile or explain the difference between the opinions voiced by the child.

236When I examine the content of the information communicated to the clinician, it is clear information has been shared with the child by the mother and/or A.

237The child is a 12-year-old who was home schooled for two years shortly before coming to Canada. Her social existence was limited to her immediate family and friends. In December of 2023, after having no contact with her father for over two years, he re‑emerged in her life. Family court proceedings were commenced again, and the parents became involved in a full brawl to determine access.

238The mother took the child to see a counsellor in January of 2024 as she claimed the child was experiencing depressive and anxiety symptoms from a past event and current mandatory visitation with the father. The mother expressed the child experienced anxiety and fear when seeing the father. The mother stated she had to force the child to attend visits with the father. The mother stated the child was “terrified” of the father and begged the mother not to take her to the visits. After visits with the father, the mother stated the child would shut down for about two days, refuse to talk, or eat. I have addressed my concerns with the mother’s evidence above.

239There is evidence before me from the mother that the child wanted to contact the father in January of 2023. The mother attempted to facilitate that contact. This contradicts information provided by the child to the clinician that she did not want to see her father and feared him because of the incident in September of 2021.

240Other evidence to the contrary was produced by the father and his current partner. It reflected the child’s excitement about a family trip to Florida and her reconnection with the father and her extended family.

241Evidence that suggests the child has been influenced by the mother and A include descriptions of the incident on September 5, 2021, where the child stated that A was attacked and choked. A herself did not describe being choked. This is something the mother has repeated in her different versions of the incident.

242The one hundred eighty degree change in position from information provided to Carolyn Perpall, that the child did not want to choose between her parents, to not wanting any further contact with the father reinforces the influence the mother has had on the child. It is unfortunate that the child has been put in a position where she has been made to choose between her parents.

243The child is clearly concerned about being separated by the mother. This is a situation created solely by the mother. What has concerned me the most in these proceedings is the mother’s deliberate attempt to thwart the court proceedings in the Bahamas. It is one of the more egregious examples of creating a self-help situation and shopping for what she perceives is a better forum.

244The child has no independent recollection of her parents living together is one of the most truthful and independent statements. Concerns regarding stalking and harassment by the father is likely attributable to discussions held in her presence or earshot by the mother and A. The child is aware of the dual proceedings and represented by counsel and designated representatives. She has been made aware of what is at stake and the possibility of a court ordering her return.

245I understand the fear she must face in being separated from the mother and A; however, courts cannot condone self-help initiatives of parents hoping to forum shop for more favourable results when they have not fully explored the remedies available in their home country. The mother made no effort to seek authorization in Bahamas to relocate with the child.

246Contrary to submissions of counsel for the OCL and the mother, I find that the mother has influenced the child by either directly speaking with her regarding issues or having discussions in the presence or earshot of the child. An example is the child’s description that her father “attacked and choked A” which is more consistent with the mother’s description of the event than A’s.

247I have considered the views of the child 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 the child’s return to the Bahamas. 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.

Issue 3: Pursuant to Article 20, should this Court exercise its limited discretion to refuse to order the return of the child because it would impact the fundamental principles of Canada relating to the protection of human rights and fundamental freedoms?

248The OCL relies on Article 20 of the Convention which confers on this Court limited discretion to refuse to make an order for the return of a child “if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

249Prior to the IRB releasing its decision, the OCL argued that because the refugee claim was pending, it would be inconsistent with the fundamental principles of Canada, and specifically, the non-refoulment provisions in s. 115(1) of the IRPA to order the child returned. This is because a person is not permitted to continue a refugee claim in their home country.

250After the IRB decision was released granting the child refugee status, OCL continued to rely on the non-refoulement principle to argue it would offend the child’s human rights and fundamental freedoms to be returned to Bahamas.

251I reject these arguments for four reasons. First, the child was granted refugee status as the hearing unfolded. Therefore, the issue about the child being unable to continue her refugee claim is now moot.

252Second, the principle of non-refoulement “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations”: A.M.R.I., at para. 54, citing Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281. However, the authorities make clear that the principle of non-refoulement does not create a prohibition preventing the child’s return under the Convention. Rather, “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” and that “[a] risk of ‘persecution in the immigration context clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention”: A.M.R.I at para. 74, cited with approval in A.A. at para. 87. In both Hague and non-Hague cases, the approach in A.M.R.I. maintains the balance necessary to protect refugee rights while also respecting the goals of return orders: A.A. at para 91. The court must weigh the goals of return orders pursuant to the Hague (or provincial legislation) against federal and international obligations under refugee law, to exercise its discretion appropriately: A.A. at para 104.

253Third, for reasons given, I am not persuaded that there is a grave risk of harm were the child to be returned to Bahamas. Further, I am not satisfied the child would face a risk of being subjected to human rights violations if returned to Bahamas. The evidence received about the Bahamas legal system, a contracting state to the Hague Convention, and the fact that the Court in Bahamas was appropriately exercising its jurisdiction for this family in a fair and appropriate manner give me no concern that the child would be subjected to human rights violations. I rejected the evidence to the contrary.

254Fourth, 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, benefited from a more fulsome evidentiary record to assess what harm, if any, would result if the child were returned to Bahamas. The IRB determination is not determinative of the analysis: A.A. at para 106.

255For these reasons, I decline to exercise my discretion not to order the child returned to the Bahamas under Article 20 of the Hague Convention.

F. OTHER ISSUES

Leave to cross-examine the Applicant

256On December 5, 2024, counsel for the mother sought leave of the court to cross-examine the father on his affidavits. The issue arose after the OCL sought leave to file further information that the father submitted unsolicited information to the IRB. Ms. Dales argued the conflicting positions regarding the domestic violence perpetrated against the mother and A required an oral hearing with tested evidence for the court to make findings of credibility. The OCL had initiated the request for leave to cross-examine the father on behalf of the mother and sought to cross‑examine the father on behalf of the child.

257Despite several appearances in this matter, this was the first request to cross-examine the father. On the first day of these proceedings, I specifically asked if there was to be cross‑examination for any other persons other than the experts and was told no.

258The father was opposed and repeated his concerns that this matter had far exceeded the six‑week timelines for Hague applications. Further, the mother had never requested an oral hearing on any of the earlier appearances. A day had been scheduled for cross-examination of the experts and a further day, if necessary, for submissions. To seek leave of the court at the end of the hearing is highly prejudicial, and for the OCL to seek leave to cross-examine the father on behalf of the mother was inappropriate. The matter has been before the court on nine separate occasions and not once was this raised with the judge.

259Due to time constraints addressing other matters, all agreed to the issue being heard by way of written submissions. On January 3, 2025, I dismissed the request for leave to cross-examine the father with reasons to follow. Here are my reasons.

260As stated above there are conflicting narratives regarding the historical domestic violence between the parties and the assault on A.

261Applications under the Convention are usually dealt with on a paper record. Nevertheless, there are exceptional occasions where oral evidence may be necessary. See: A.M.R.I. v. K.E.R., supra at para. 124; Zafar v. Azeem, 2024 ONCA 15 at para. 89; A.A. v. Z.S.M., supra, at para. 10. This is not one of those occasions.

262The OCL provided a chart setting out seven areas that they identified as serious credibility issues requiring an oral hearing. These include:

• Family violence perpetrated by the father against the mother.
• Family violence perpetrated by the father against A.
• The September 5, 2021, incident.
• Lack of contact with the child between September 5, 2021 to December of 2023.
• Parenting time between December of 2023 to June of 2024.
• The father’s alleged surveillance of the child, A, and the mother.
• The father’s criminal activity and influence on Bahamian officials.

263The areas of concern identified by the OCL as requiring an oral hearing have been addressed in my findings. I am not satisfied that viva voce evidence would impact my decision based on other evidence before this court.

264It is difficult to assess credibility and reliability on a paper record. However, some determinations may be made where there are internal inconsistencies within a party’s affidavit, or conflicting information between their affidavit and other evidence. A court may also look to independent evidence that either corroborates or contradicts an affiant’s position.

265The only issue that remains unresolved is whether spyware or tracking devices were installed on the children’s laptops. Requiring oral evidence on this one point would not necessarily resolve that issue or be determinative of my ultimate findings.

266One matter that I had not addressed above deals with the reliability of the recollection and evidence of A. In her affidavit, she recalled several incidents that occurred in 2012, including a “road rage” event. She stated her father was the aggressor, however, the father provided evidence that contradicted her recollection and demonstrated he was the victim of the attack and required medical assistance. Further, the attackers were charged, and the father was required to testify. This required the court to look at her evidence with closer scrutiny regarding other events she described in that same timeframe, given her young age, and ability to accurately recount the events, with other evidence presented.

267An application under the Convention is a summary application. The parties are not entitled to a full trial as this would raise the “spectre of further delay.” The usual practice is to present evidence in affidavit and exhibit form. While oral evidence is possible, its admission should be used sparingly. See: A.M.R.I. v. K.E.R., supra at para. 124; Zafar v. Azeem, 2024 ONCA 15 at para. 89; A.A. v. Z.S.M., supra, at para. 10; Zimmerhansl v. Zimmerhansl, 2001 ABQB 589.

268I have determined this is not a rare and exceptional case where viva voce evidence would assist in determining whether there is a grave risk of harm to the child’s return to her habitual residence in the Bahamas. I am satisfied for reasons set out above that there is a sufficient record to permit me to determine whether there is a grave risk of harm if the child is ordered returned. My decision to dismiss the request to cross-examine the father predated the release of the IRB decision which created a rebuttable presumption in favour of the mother.

Non-compliance with Court Orders

269The father brought a 14B motion seeking sanctions for the mother’s non-compliance with earlier Orders of Nakonechny J. On October 31, 2024, the court ordered that “any sanctions for non-compliance” be determined by the hearing judge. At the outset of these proceedings, I dismissed some of the relief sought by the father which is referenced earlier in my decision. I reserved on the other remedies sought until the completion of the hearing.

270The other relief sought includes restricting the mother from obtaining any further orders of this court without obtaining leave first; costs of the motion on a full recovery basis; a daily fine of $500; and any other relief the court finds appropriate pursuant to Rule 1(8) of the FLR.

271I am not prepared to order a daily fine; however, the mother is in direct violation of the Order and was reordered to produce her full address including unit number to the father and continued to disregard this. The mother also disregarded the court order by not providing a copy of the child’s school registration form. In the circumstances, the mother is ordered to pay the father the sum of $1500 forthwith. A bill of costs for the motion was not submitted, therefore no costs are ordered on this motion.

Other 14B Motions Outstanding

November 1, 2024 – Mother’s 14B Motion

272On November 1, 2024, the mother brought a separate 14B motion seeking three separate grounds of relief. These included i) an adjournment of the proceedings; ii) a variation of the Orders of Nakonechny J.; and iii) a restraining order.

273I dismissed the request for the adjournment for reasons set out above. The other two grounds of relief requested are not procedural, uncomplicated, or unopposed and the 14B motion is dismissed on that basis. The matter requires a case conference and timetabling of the motion. If the mother still wishes to pursue the additional relief, the parties may contact the Family Trial Office to schedule a case conference before me.

January 29, 2025 – Father’s 14B Motion

274On January 29, 2025, the father brought an urgent 14B motion seeking to introduce fresh evidence on this hearing. The evidence sought to be introduced is information that the Minister of the Immigration and Refugee planned to appeal the IRB decision granting refugee status to the child.

275The motion is opposed by the mother and the OCL.

276I decline to admit the fresh evidence. Whether the IRB decision is appealed or not, does not impact the findings made in this proceeding.

G. COSTS

277The father is entitled to his costs on these proceedings. In addition, costs of the October 2 and 30, 2024, appearances were reserved to the judge hearing this application.

278If the parties are unable to agree on costs, written submissions shall be served and filed and shall not exceed three pages, 12-point font, double spaced, attached with a bill of costs submitted as follows: Applicant to serve and file no later than 5:00 p.m. on May 20, 2025; Respondent to serve and file no later than 5:00 p.m. on May 30, 2025.

279The father sought costs from the mother regarding the necessity of responding to her motion for leave to cross-examine. Oral submissions were heard January 6, 2025, and a bill of costs uploaded to case centre. I have reserved my decision on this issue and will release a global order for costs.

CONCLUSION

280The father’s Hague application is granted. I find that the child is wrongfully retained in Canada and shall be returned to the Bahamas. On consent of the parties, she shall return to the Bahamas within 14 days of today.

281Given my decision that the child shall be returned to her habitual residence, counsel are invited to provide written submissions regarding terms and/or conditions of her return within 7 days. The child’s return shall be done with a child-focused lens and not an apprehension by the police to enforce the order if this can be avoided.

RHINELANDER, J.

RELEASED: MAY 5, 2025

AMENDED: AUGUST 6, 2025

RE-RELEASED: OCTOBER 30, 2025

CITATION: Kirby v. Woods, 2025 ONSC 2655

COURT FILE NO.: FS-24-44880-0000

DATE: 20250505

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Kirby Applicant

– and –

Woods Respondent

– and –

the Child