Court File and Parties

Court File No.: FS-25-00049948-0000

Date: 2026-02-13

Ontario Superior Court of Justice

Between: C., Applicant – and – M., Respondent

Counsel: Daniel Walker, for the Applicant Shelly Kalra, for the Respondent Kathryn Junger, for the Office of the Children's Lawyer

Heard: February 12, 2026

Endorsement

Diamond J.:

[1] This application, made under the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"), was commenced on June 5, 2025. The applicant seeks the return of the parties' (then) 14-year-old child to Hong Kong.

[2] After the applicant obtained initial ex parte relief from Justice Nakonechny on June 9, 2025, the respondent initiated a refugee application with the Refugee Protection Division ("RPD") of the Immigration and Refugee Board of Canada ("IRB").

[3] In addition, the Office of the Children's Lawyer ("OCL") was appointed to represent the interests of the parties' child.

[4] I have been acting as case management judge in this application since the release of my Endorsement dated July 10, 2025. As case management judge, I have attempted to schedule the hearing of this application expeditiously in accordance with, inter alia, the provisions of Rule 37.2 of the Family Law Rules, while at the same time ensure that the substantive rights and interests of the parties and the child are maintained and respected.

[5] The parties spent some time negotiating the terms of a sealing order and publication ban to ensure compliance with the IRB rules and procedure. After discussing a timetable for the exchange of sworn application materials with counsel for the parties and the OCL at a case conference held on November 13, 2025, I issued an Endorsement that day which scheduled the hearing of this application to proceed in person on February 23, 2026 for up to 5 days.

[6] In that Endorsement, I stated that the date of February 23, 2026 was chosen "to follow the anticipated hearing date of the proceedings before the IRB". At that time, counsel for the respondent confirmed that the IRB hearing was set to proceed in late January 2026.

[7] At the request of the respondent, a further case conference proceeded virtually before me on February 12, 2026. The respondent requested that the hearing of this application be adjourned as the IRB hearing did not proceed as scheduled in late January 2026. No reason was provided by the IRB for the rescheduling of the hearing.

[8] Counsel for the respondent submitted that the IRB hearing was now scheduled to proceed in the third week of March 2026, but earlier dates are being sought.

[9] The OCL supports the respondent's request for an adjournment of the hearing of this application. The applicant vigorously opposes it.

[10] Assuming that the IRB hearing proceeds as scheduled during the third week of March 2026, and a decision is released by the IRB within a reasonable period thereafter, counsel for the parties and the OCL are not available to argue this application until mid-May 2026.

[11] The issue for this Court's determination is made difficult due to the interplay between the Court's overall statutory and common law obligation to ensure that Hague Convention applications be heard as quickly as possible (ideally an adjudication within 6 weeks), and the Court's obligation to show a high degree of deference to IRB decisions (where applicable) as mandated by the Court of Appeal's decision in Kirby v. Woods 2025 ONCA 601.

[12] Article 11 of the Hague Convention required Canada to "act expeditiously in proceedings for the return of children". As held by the Supreme Court of Canada in Office of the Children's Lawyer v. Balev 2018 SCC 16:

"The harms the Hague Convention seeks to remedy are evident. International child abductions have serious consequences for the children abducted and the parents left behind. The children are removed from their home environments and often from contact with the other parents. They may be transplanted into a culture with which they have no prior ties, with different social structures, school systems, and sometimes languages. Dueling custody battles waged in different countries may follow, delaying resolution of custody issues. None of this is good for children or parents."

[13] In Balev, the Supreme Court of Canada explicitly stated that judges hearing Hague Convention applications should not hesitate to expedite proceedings in the interest of the children involved, as such applications should be "judge-led, and not party-driven" (my emphasis).

[14] This obligation to proceed expeditiously has been highlighted and emphasized by the Court of Appeal on many occasions. In Leigh v. Rubio 2022 ONCA 582, the Court clearly stated:

"Prompt return protects against the harmful effects of wrongful removal or retention, deters parents from abducting the child in the hope that they will be able to establish links in a new country that might ultimately award them custody, and provides for a speedy adjudication of the merits of a custody or access dispute in the forum of a child's habitual residence, which eliminates disputes about the proper forum for resolution of custody and access issues."

[15] Since the release of Kirby, the Toronto Family Court has seen a significant uptick in the number of Hague Convention applications which include a party (typically the respondent) initiating a simultaneous refugee application before the IRB. In Kirby, the Court of Appeal noted that the refugee determination took place on the eve of closing submissions, ie. after the evidence had already been led before the Court which necessitated a variety of interim rulings, etc.

[16] At paragraph 91 of Kirby, the Court of Appeal recognized that "when a Hague application unfolds in real time, it is not always clear how best to proceed, given the imperative under Rule 37.2(2) to proceed expeditiously and the intended summary nature of the process". However, other than critiquing the application judge's handling of the IRB decision (once it was rendered), Kirby does not squarely address how a judge tasked with hearing a Hague Convention application within (ideally) six weeks can do so while providing deference to an IRB decision that may take 6 to 12 months to be rendered.

[17] This Hague Convention application is now eight months old. The parties' child is now 15 years of age, and will be 16 years of age in September 2026 (rendering the child outside the application of the provisions of the Hague Convention).

[18] How does this Court reconcile its obligation to proceed expeditiously with the respondent's request to allow for an IRB decision to be made and then considered at the hearing?

[19] In A.A. v. Z.S.M. 2025 ONCA 283, the Court of Appeal held (albeit in a non-Hague Convention application) that there is no blanket prohibition against a return order in the face of an outstanding refugee application. In my view, this rationale applies equally to applications brought under the Hague Convention as both the Convention and section 40 of the Children's Law Reform Act R.S.O. 1990 c. C12 ("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. There is nothing in the Convention, the CLRA or other Ontario statute that would prevent the Court from determining a Hague case while a refugee application is pending.

[20] In my view, the Hague Convention application must proceed, and I am exercising my discretion as the case management judge to deny the respondent's adjournment request. Balev is the governing authority, setting out the governing principles for the adjudication of Hague Convention applications. There are explicit, sound policy reasons for such an adjudication to proceed as expeditiously as possible. While the post-Kirby jurisprudence has followed and addressed the role and reliance upon an IRB decision within a Hague Convention application, the Court of Appeal for Ontario in Kirby did not find that Hague Convention applications must allow for the inclusion of IRB decisions when such refugee applications are pending.

[21] The judge hearing a Hague Convention application retains a discretion to move as expeditiously as necessary in accordance with the findings in Balev and rule 37.2 of the Family Law Rules. The Court may attempt to schedule the hearing of Hague Convention applications after the rendering of an IRB decision when to do so would be reasonable and not run afoul of the valid concerns raised in Balev. However, to allow for pending IRB decisions to be first finalized and released by the IRB in every single Hague Convention application would amount to "party-driven" applications, which the Supreme Court of Canada found to be improper in Balev.

[22] On the record before this Court, as the IRB hearing has already been rescheduled once, there is no guarantee that the IRB hearing will proceed as scheduled in late March 2026. Even if it does proceed as scheduled, there is no guarantee when a decision will be rendered. Further, appeals from the IRB decision could also ensue.

[23] To adjourn this Hague Convention application is to have it heard in May 2026 or beyond. That would result in a decision to be rendered by this Court more than a year after the issuance of this Hague Convention application, and risks the child turning 16 years of age. As the Court of Appeal held in Leigh, a delay of this length risks hardship on the child, frustrates appellate review and breaches Canada's international obligations.

[24] The respondent and the OCL raise concerns that if an IRB decision is released after the hearing and/or decision is completed in this Hague Convention application, any appeal of that decision will be complicated by the efforts to introduce fresh evidence, including the IRB decision itself. Such a submission assumes that the IRB decision will favour the respondent. However, even if it does favour the respondent, the Court of Appeal for Ontario is in a position to address any such requests as it did in Kirby, and will hopefully provide some needed guidance on this post-Kirby reconciliation task if I have exercised my discretion as case management judge on an incorrect legal principle.

[25] The IRB indeed controls its own process. But as Balev instructs, so does this Court.

[26] For these reasons, the respondent's request to adjourn the Hague Convention application is dismissed, and the hearing will proceed as scheduled on February 23, 2026.

[27] Finally, with respect to the respondent's request that the applicant's late-served expert report be excluded from the evidentiary record, that request falls within the purview of the judge hearing this Hague Convention application.

Diamond J.

Released: February 13, 2026