CANADA - ONTARIO
Ontario Court of Justice
Justice Debra Paulseth
CANADA - ONTARIO
3 June 2020
Grave Risk - Art. 13(1)(b)
Appeal dismissed, return refused
The parents married in Syria in February 2016 and had a child in 2017, born in Canada.
The parents lived together in Germany from June 2017 until March 2019. On 30 March 2019, the mother and child came to Canada and in April 2019 she told the father they would not be returning to Germany.
In December 2019 the father made an application under the 1980 Hague Convention, claiming wrongful retention by mother of the child in Canada and seeking the return of the child to Germany.
The parents agreed that the child had been habitually resident in Germany at the time of the retention and that the retention was wrongful.
The mother relied on Article 13(1)(b) claiming that there was a grave risk of harm to her and the child if they returned to Germany due to the fathers violence and controlling behavior.
Application dismissed. Return refused as there would be a grave risk of harm to the child if he was returned to Germany.
The court noted that there is a high threshold to prove grave risk of harm under Article 13(1)(b) and that, in this particular case, there was a constellation of factors which could not be considered in isolation.
The court carefully considered all the evidence and held that the mother had proven on a balance of probabilities that the Article 13(1)(b) exception applied in this case.
The father had been physically and emotionally abusive to the mother and emotionally abusive to the child. His controlling behavior had isolated them.
The Court was satisfied that there was a grave risk that the child would be exposed to ongoing physiological and psychological harm if returned to Germany.
The Court noted that, though there was no doubt that Germany had all of the institutional and legislative protections found in Canada to support the mother, the fact that the parents lived within a very closed community within Germany placed both mother and child at grave risk.