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The mother and father married in the Ukraine in 1990 and moved to Israel in 1994. They divorced in 2003 and agreed that custody of the children be granted to the mother with visitation rights to the father. The custody and visitation order prevented the children from being removed from Israel.

In July 2004, the Israeli court granted leave for the mother to take the children to the Czech Republic on the condition that the children be returned to Israel by 1 September 2004. The order was granted with the father’s consent.

The mother and the children ended up in Canada without the knowledge or consent of the father.

The father made an application under the 1980 Convention for the return of the children.

After her arrival in Canada, the mother launched a refugee claim on her behalf and on behalf of the children. The Refugee Protection Division heard the claim, but reserved its decision at the time of the hearing.

At first instance the judge found that the children were being wrongfully retained in Ontario and ordered their return to Israel.

The mother appealed.

Appeal dismissed, return ordered.

Non-Convention Issues

Counsel for the mother argued that the application of the Convention ought to be stayed pending the final determination of a claim for refugee status.

The court noted that these arguments were rejected in Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.).

The Court said there was no basis to reach a different conclusion to that in Kovacs.