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Family - Hague Convention (3). Maarif v. El Fazazi
In Maarif v. El Fazazi (Ont CA, 2026) the Ontario Court of Appeal allowed a family law appeal, here brought against "an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction".
Here the court considers the role of the child's refugee status in returning them to their original country under the Hague Convention:[96] The mother and the OCL submit that given this now-pending refugee application, the court should, following the principles set out in A.M.R.I. v. K.E.R., 2011 ONCA 417 and Kirby, decline to return the child. The OCL submits that a pending refugee claim is an additional basis upon which the court may find that the exceptions set out in art.13 or 20 of the Convention are made out. The OCL emphasizes that returning the child before the refugee claim is determined will violate the principle of non-refoulement and her claim will become moot.
[97] Given my conclusion that a return of the child would constitute a grave risk of harm based on the father’s conviction for assault against the child and related circumstances, it is not necessary to address the impact of the child’s pending refugee claim on the child’s possible return.
[98] I would however note the misplaced reliance on A.M.R.I. and Kirby for pending refugee claims. The rebuttable presumption discussed in A.M.R.I, at para. 74, and in Kirby, at para. 45, arises where a refugee determination has already been made. The impact of a pending refugee claim was analyzed by the court in in M.A.A. and further addressed in A.A. v. Z.S.M., 2025 ONCA 283. . Maarif v. El Fazazi [child's wishes wrt return]
In Maarif v. El Fazazi (Ont CA, 2026) the Ontario Court of Appeal allowed a family law appeal, here brought against "an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction".
Here the court considers the role of a child's wishes regarding whether they should be returned home under the Hague Convention:5. The Child’s Objection to Return
[87] The mother submits that the application judge erred in her treatment of the child’s objection to returning to Morocco. Supported by the OCL, she argues that the application judge imposed additional requirements to give effect to a child’s views and erred by failing to implement the child’s objections. The OCL emphasizes that a child’s right to be heard is fundamental, protected by the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, and that the objection exception set out in art. 12(2) of the Convention embodies this right.
[88] I would not accept this submission.
[89] Article 13 of the Convention permits, but does not require, a court to refuse to order the return of the child if it finds “that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (emphasis added).”
[90] The OCL’s submissions fail to acknowledge the requirement of maturity clearly articulated in this exception. The OCL also overlooks that exceptions to return are just that: exceptions. The exceptions provide circumscribed and discretionary bases to refuse to order what would otherwise be the mandatory return of a child. They do not confer a general discretion on the application judge to decline return: Balev, at para. 76.
[91] Determining the maturity of a child is a fact-based inquiry, requiring a “common-sense approach”. This is generally a matter of inference from the child’s demeanor, testimony, and circumstances: Balev, at para. 78.
[92] The application judge meaningfully considered the views of this young child. She accepted that the child’s “true wishes” were to stay with her mother in Canada. She found that the child’s views were consistent and that there was no evidence that either parent had influenced her. The application judge reviewed decisions where the views of younger children had been a significant factor in a court’s decision not to return.
[93] At the same time, however, it is evident that the application judge found it inappropriate to implement the child’s views given her “age and degree of maturity”, as contemplated by art. 13(b). While the application judge recognized that there is no “minimum age” at which a child’s views may be given weight, she found that “[t]here is no evidence that [the child] is particularly mature beyond her young age” and expressed concern that the child did not fully appreciate the future consequences of a decision about returning to Morocco “as she [is] simply happy and content and bonded to her mother and her new living arrangements”. This did not impose additional requirements on the child. Rather, it recognized the requirement of maturity articulated in this exception and concluded that it was not satisfied. I see no reason to interfere. . Maarif v. El Fazazi ['grave risk of harm']
In Maarif v. El Fazazi (Ont CA, 2026) the Ontario Court of Appeal allowed a family law appeal, here brought against "an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction".
Here the court considers an exception to the child abduction mandatory return rules - that of "grave risk of harm upon return":[27] I would allow the appeal solely on the application judge’s treatment of the father’s criminal conviction for assault against the child. The determination of whether there is grave risk of harm upon return requires a prospective and cumulative assessment. The criminal conviction should have been considered in conjunction with the child’s near certain separation from her primary caregiver, and the lack of any prospective safety plan for the child.
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a. Key Principles
[42] The caselaw sets a high threshold for what constitutes “grave risk of harm”[3] under art. 13(b) of the Convention[4]:(1) To constitute grave risk of harm under the Convention, the risk must be “weighty and substantial” and must place the child in an “intolerable situation”. The word “grave” modifies the word “risk” and not the “harm”: Thomson, at p. 595. As this court stated in Rayo Jabbaz v. Rolim Mouammar (2003), 2003 CanLII 37565 (ON CA), 226 DLR (4th) 494, at para. 23, “[t]he use of the word “intolerable” speaks to an extreme situation, a situation that is unbearable, a situation too severe to be endured”.
(2) The exception to return will only be met in situations that “an individual child should not be expected to tolerate”: F. v. N., 2022 SCC 51, at para. 73. However, the threshold does not require that the child be “pushed beyond the limits of endurance”: Husid v. Daviau, 2012 ONCA 655, leave to appeal refused, [2012] S.C.C.A. No. 485; Kirby v. Woods, 2025 ONCA 601, at para. 49. Neither the Convention nor Thomson require that the risk be “life threatening”: Kirby, at para. 89;
(3) Returning a child to a violent environment places that child in an inherently intolerable situation: Pollastro v. Pollastro, (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (C.A.), at p. 496; Husid, at para. 23.
(4) Violence against a parent may but does not always constitute grave risk of harm to a child; Pollastro; Finizio v. Scoppio-Finizio (1999), 1999 CanLII 1722 (ON CA), 46 O.R. (3d) 226.
(5) A criminal conviction related to abuse, whether against a parent or a child, is not required to invoke the art. 13(b) exception where sufficient evidence is presented that an intolerable situation for the child exists: Lombardi v. Mehnert, 2008 ONCJ 164.
(6) Separation from a primary caregiver may, but does not always, rise to the level of serious harm to a child, either on its own or in combination with other factors: F. v. N., at paras. 78, 79; Thomson, p. 597. Considerations include: the child’s age, special needs, and vulnerabilities that may mitigate or aggravate risk of harm. Parenting capacity of the left-behind parent and alternate caregivers as well as the child’s sense of safety are relevant considerations: F. v. N., at para. 80.
(7) At the same time, a parent ought not to be able to create the harm and then rely on it through their own refusal to return: F. v. N., at para. 82. [43] In assessing grave risk of harm, the onus is on the party opposing return: Thomson, at p. 596; Husid, at para. 20. The assessment is undertaken from a child-centered perspective: Thomson, at p. 597. From a child-centered perspective, harm is harm, and if it is severe enough to meet the stringent test of the Convention the source is not relevant: F. v. N., at para. 70 citing Thomson, at p. 597.
[44] The assessment of grave risk of harm is forward-looking and requires an assessment of the likelihood and the severity of the anticipated harm: F. v. N., at para. 71; Ojeikere v. Ojeikere, 2018 ONCA 372, at para. 62. The assessment of grave risk of harm is necessarily holistic and cumulative. The exception may be engaged by a single factor or a combination of factors: F. v. N., at para. 71; see also: Barendregt at para. 144. Whether the risk is “grave” requires a highly individualized assessment focused on the circumstances of the child: F. v. N. at para. 72.
[45] Additionally, all barriers to the return of the primary caregiver should be considered, both voluntary and involuntary. Definitive legal obstacles to return should be distinguished from a choice not to return when there is no legal impediment. A primary caregiver’s refusal to return may, but will not always, be unjustified: F. v. N., at paras. 82, 83.
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ii. Prospective and cumulative assessment
[75] In assessing whether the grave risk of harm threshold has been met in the context of a conviction for assault against the child, the focus should be on the prospective plan for the child upon return. The court should consider, for example, with whom the child will live, the extent to which the primary caregiver will be involved (if at all), and whether any third party(ies) will be assisting with the care of the child.
[76] As seen above, separation from a primary caregiver is itself a factor for consideration in the grave risk of harm analysis. Where a parent will not return with the child, the court must contemplate the child’s new placement and any harm likely to flow from it: Ojeikere, at para. 73. Here, the father’s conviction for assault against the child should have been considered in conjunction with the likelihood of the child’s separation from the mother. . Maarif v. El Fazazi ['habitual residence']
In Maarif v. El Fazazi (Ont CA, 2026) the Ontario Court of Appeal allowed a family law appeal, here brought against "an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction".
Here the court considers the Hague Convention concept of 'habitual residence':3. Habitual Residence of the Child
[36] The mother submits that the application judge erred in her determination that Morocco is the child’s habitual residence. She asserts that the child’s habitual residence should be tied to her, as her primary caregiver since birth, rather than to a geographic location. On this basis, she says, the child’s habitual residence was Canada, and the Convention does not apply. The mother relies on the statement in Balev, at para. 46 that there is no “rule” that the actions of one parent cannot unilaterally change a child’s habitual residence in support of this submission.
[37] On the “hybrid approach” to habitual residence, the application judge determines “the focal point of the child’s life immediately before the removal or retention” [emphasis added]. In so doing, the court considers “all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B”: Balev, at para. 43.
[38] The application judge did precisely that. She set out the applicable law and carefully considered the child’s many links to Morocco, the circumstances of her move from Morocco to Canada, and her links to and circumstances with her mother in Canada, including attendance at school, and participation in swimming and skating lessons.
[39] The application judge’s conclusion that prior to her removal, the focal point of the child’s life was Morocco, is both entitled to deference and clearly correct: Balev, at para. 38. This ground of appeal cannot succeed. . Maarif v. El Fazazi
In Maarif v. El Fazazi (Ont CA, 2026) the Ontario Court of Appeal allowed a family law appeal, here brought against "an order returning a five-year-old child, S.M. (the “child”) to Morocco pursuant to the Hague Convention on the Civil Aspects of International Child Abduction".
Here the court considers the purpose and legal test applicable to the Hague Convention:2. The Analytical Framework for Convention Proceedings
[33] The purpose of the Convention is to enforce custody rights and secure the prompt return of a child who has been wrongfully removed: Ludwig v. Ludwig, 2019 ONCA 680. Prompt return protects against the harmful effects of removal and establishment of links to a new country, deters parents from abducting children, and provides for the resolution of custody issues in the country of habitual residence: Office of the Children’s Lawyer v. Balev, 2018 SCC 16, at paras. 24 – 27.
[34] First, the court determines the habitual residence of the child, and on that basis, whether the Convention applies. Second, if the Convention applies, the court will consider whether any of the five exceptions to return applies, such that the court is not bound to order the return of the child: Balev at paras. 103 - 4:(1) The application for return was brought more than one year from the wrongful removal or retention and the court determines that the child is settled in her new environment (art. 12).
(2) The parent seeking return was not exercising rights of custody at the time of the removal or consented to the removal or retention (art. 13(a));
(3) There is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (art. 13(b));
(4) The child of sufficient age and maturity objects to being returned (art. 13); or,
(5) The return of the child would not be permitted by fundamental human rights and freedoms of the requested state (art. 20). . Kirby v. Woods
In Kirby v. Woods (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where a "wrongfully retained child was ordered back to her country of origin after Canada granted her refugee status".
Here the court considers the interaction between Ontario child welfare (CLRA) law, it's integration of the Hague Convention, and Canadian refugee law:(1) Refugee Status, Grave Risk of Harm and the Rebuttable Presumption
[45] A.M.R.I. [SS: a case] establishes that 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. In my view, this rebuttable presumption was not applied in this case.
(i) The Hague Convention and Grave Risk
[46] The Hague Convention is implemented as part of Ontario's domestic law under s. 46 of the CLRA. The overarching principles of the Hague Convention are “(1) to treat the interests of children as paramount in matters relating to their custody; (2) ‘to protect children internationally from the harmful effects of their wrongful removal or retention’; and (3) ‘to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access’”: A.M.R.I., at para. 47, citing the preamble of the Hague Convention.
[47] To accomplish these objects, other than in exceptional circumstances, the assessment of best interests in decision making and parenting time matters is entrusted to the courts in the country of the child’s habitual residence. This philosophy discourages child abduction and forum shopping, and provides children with stability in the instance of family breakdown: A.M.R.I., at para. 49, citing Cannock v. Fleguel, 2008 ONCA 758, 303 D.L.R. (4th) 542, at para. 23. As explained by the Supreme Court in F. v. N., at para. 9, the return order procedure in s. 40 of the CLRA “starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests.”
[48] The mandatory return requirement under the Hague Convention is subject to limited exceptions, including, at art. 13(b), where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
[49] The governing case on the meaning of grave risk of harm within the Hague Convention is Thomson. In that case, the Supreme Court held that to constitute grave risk, the risk must be weighty and substantial, and must place the child in an intolerable situation: at p. 597. The word “grave” modifies the “risk” and not the “harm”: Thomson, at p. 596. The assessment must be undertaken from a child-centred perspective: Thomson, at p. 597. Stated otherwise, this defence to return will only be met in “situations that an individual child should not be expected to tolerate”: F. v. N., at para. 73, as cited in Osaloni v. Osaloni, 2023 ABCA 116, at para. 12. This is a high threshold: Ellis v. Wentzell-Ellis, 2010 ONCA 347, 102 O.R. (3d) 298, at paras. 37, 40. Consistent with the objectives of the Hague Convention, the threshold does not require that children be “pushed beyond the limits of endurance”: Landman v. Daviau, 2012 ONSC 547, 17 R.F.L. (7th) 332, at para. 103, aff’d Husid v. Daviau, 2012 ONCA 655, 298 O.A.C. 182, leave to appeal refused, [2012] S.C.C.A. No. 485.
[50] The grave risk threshold may be met by the actions or pattern of behaviour of a parent, with or without physical violence against a child. In Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (C.A.), this court held that a continued pattern of escalating abuse, combined with threats against the mother and her family were sufficient to create an intolerable situation for the child, where the child had not, himself, been physically abused by the father: see also Husid.
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(iv) The Intersection of Grave Risk and Canada’s Non-Refoulement Obligations
[68] This court first grappled with the intersection of refugee status and the Hague Convention in A.M.R.I. The approach taken therein was confirmed more recently in A.A. v Z.S.M., 2025 ONCA 283. In A.M.R.I., the court relied on the Supreme Court’s decision in Németh to conclude that, “a determination of refugee status must be treated by a Hague application judge as giving rise to a rebuttable presumption of a risk of harm when determining whether to grant an order of return in respect of a refugee child”: at para. 78.
[69] Németh, decided in the extradition context, determined that that if s. 44(1) of the Extradition Act, S.C. 1999, c. 18, is properly applied, there will be no breach of the non-refoulement principle in the removal of an individual who has been found to be a Convention refugee. Section 44(1) of the EA, like s. 115(1) of the IRPA, gives effect to Canada’s non-refoulement obligations. While s. 115 of the IRPA does not preclude extradition, Cromwell J. stressed, at para. 58 of Németh, that where a person has been found to be a refugee, the exercise by the Minister of Justice of his power of surrender must “give sufficient weight or scope to Canada's non-refoulement obligations in light of which those powers must be interpreted and applied". He explained at para. 105:[M]y view is that where a person has been found, according to the processes established by Canadian law, to be a refugee and therefore to have at least a prima facie entitlement to protection against refoulement, that determination must be given appropriate weight by the Minister in exercising his duty to refuse extradition on the basis of risk of persecution. [70] Németh contemplates two circumstances in which a removal of a person found to be a Convention refugee would be permissible. Notably, nothing in Németh, other than as set out below, suggests that a court considering return should go “behind” the refugee determination itself.
[71] First, Németh instructs that where the Minister is considering the removal of a refugee, a forward-looking risk assessment should be undertaken to determine whether the risk that led to the refugee determination persists. The burden to show otherwise is on the Minister, not the claimant. A “change of circumstances” in a refugee’s country of origin may lead to the cessation of refugee protection, without the need for a formal revocation of refugee status: see paras. 103-7, 114. Refugee status is “temporal,” as discussed above; accordingly, if the risk is no longer present, the person ceases to be a refugee, and there is no refoulement upon return.
[72] Second, Németh also identifies vitiating circumstances that may come to light after a refugee determination is made. These could include evidence that refugee status was obtained through misrepresentation or withholding material facts. Again, the burden is on the Minister, not the refugee: at para. 110.
[73] In A.M.R.I., this court determined that the Hague Convention also contemplates respect for Canada’s non-refoulement obligations: A.M.R.I., at para. 68. Like s. 44(1) of the EA, art. 13(b) of the Hague Convention “must be construed in a manner that takes account of the principle of non-refoulement”: A.M.R.I., at para. 68. This, the court held, ensures compliance with Canada’s treaty obligations: A.M.R.I., at para. 69.
[74] Accordingly, 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 that engages the grave risk of harm exception: A.M.R.I., at para. 74.
[75] While noting the differences between court and IRB procedure and treatment of evidence, and reminding judges to be alert to any apparent attempt to misuse the refugee system, this court in A.M.R.I. directed at para. 74, that:[W]hen 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. A risk of “persecution” in the immigration context clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention. [Emphasis added.] [76] Further, in articulating the presumption, this court in A.M.R.I. emphasized the deference to be shown to the decision of the IRB on a refugee claim, stating at para. 72:What, then, is the significance of an IRB refugee determination on a Hague Application? In order to grant a refugee claim, the IRB must be satisfied, on a balance of probabilities, based on evidence that it regards as trustworthy and reliable, that a refugee claimant faces a reasonable chance of persecution. Given its expertise and specialized knowledge, the decisions of the IRB on fact and credibility-driven issues are accorded a high degree of deference by the courts…. [Citations omitted.] [77] Relying further on Németh, this court in A.M.R.I. stated that in implementing the presumption, “there should be no burden on the child who has refugee status to persuade the application judge that ‘the conditions which led to the conferral of refugee protection have not changed’”: at para. 78, citing Németh, at para. 106.
[78] In my view, based on both Németh and A.M.R.I., and recognizing the “high degree of deference” to be shown to IRB decisions, the rebuttable presumption requires the following of a judge hearing a Hague application:a. A court must not categorically dismiss the IRB’s refugee determination process due to differences in procedure and evidentiary standards that have been specifically designed for the unique functions of that tribunal. The A.M.R.I. framework accounts for those differences in the articulation of the presumption;
b. Courts should, in general and subject to (c), below, respect and defer to determinations of fact and credibility made by the tribunal and resist engaging in a reweighing of evidence considered in the refugee determination process;
c. Recognizing that refugee determinations are typically oral hearings while Hague applications tend to be summary procedures without oral evidence, a court with serious doubts about fact and/or credibility findings of the RPD in a specific case should give due consideration to permitting oral evidence and cross-examination;
d. Courts should respect and defer to the expertise of the IRB in assessing country conditions, the ability of the state to protect, and the assessment of internal flight alternatives. These are issues squarely within the expertise of the tribunal. Absent serious doubts about the analysis or findings of the RPD, courts should be cautious in permitting evidence to be called that attempts to undermine or re-visit the conclusion of the tribunal on these issues. Where, as here, such evidence has been called before the refugee determination is known, this evidence should be revisited in light of the refugee determination and given appropriate weight, recognizing the RPD’s expertise. The evidence of a single expert, in general, would be unlikely to override conclusions reached by the RPD based on the extensive documentation in the applicable NDP.
e. In considering whether to return a refugee child, the non-refoulement obligation requires an assessment of whether risk persists; this is a forward-looking analysis based on changed circumstances in the country of habitual residence, with no onus on the refugee: Németh, at paras. 106-7, 111 and 114.
f. To go behind the refugee determination itself would require case-specific evidence of misrepresentation or withholding of facts before the RPD: Németh, at paras. 108, 110. A court ought not embark on enquiry into the validity or integrity of the refugee determination absent serious doubt about the findings, analysis, and conclusions of the RPD on the facts before the court.
g. So long as the refugee proceeding is protected by the IRPA’s confidentiality provisions, the refugee claimant need not but may disclose documents prepared for or relied on in the refugee determination process in the Hague application. Recognizing the confidentiality protections inherent in the refugee determination process, it will be rare that a Hague application judge, without oral evidence, draws an adverse inference or negative credibility determination based on a refugee claimant’s choice not to produce such documents.
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