Interpretation of the Convention
The taking parent bears the evidentiary burden to satisfy the court that the circumstances of the case qualify under Article 13(1)(b) or Article 20 as an exception.
However, in the evidence called at the hearing of the mother’s application for refugee status, the Immigration and Refugee Board of Canada (IRB) found that the mother and children would face a serious possibility of persecution in Israel.
Therefore, a rebuttable presumption arose by virtue of the IRB finding that there would be a risk of harm if an order is made to return the children. While the burden of proof remained with the mother to show on the balance of probabilities that either exception under Article 13(1)(b) or Article 20 applied, the refugee decision raised the presumption at law supporting the same conclusion that was reached by the IRB. In these circumstances, the evidentiary burden shifted to the father to call persuasive evidence to displace the findings of fact behind the IRB decision.
Grave Risk – Art. 13(1)(b)
Article 13(1)(b) does not require the court to make a finding of wrongdoing against the parent requesting the return of the children. Article 13(1)(b) only requires that the grave risk anticipated will expose the children to harm of a physical or psychological nature in the requesting State. This risk of harm must be real, whether or not the parent in the requesting State is the source of that risk. It must be shown that the change would place the child in a situation beyond what the court would consider appropriate for that child to tolerate. This would include exposing the child either to physical harm, or to psychological harm that would be considered intolerable in the circumstances relevant to that child.
Human Rights – Art. 20
The status of the mother and the children as Convention Refugees by the IRB was significant in the context of an application for the return of a child under the Hague Convention.
The same principle of non-refoulement that was engaged in their status as Convention Refugees protected the mother and the children for the purposes of Article 20. The evidentiary burden was on the father to rebut the presumption that the mother as well as the children would be provided this protection.
In this case the judge did not find that the father had rebutted this presumption with persuasive evidence.
The judge exercised the discretion provided under Article 20 to conclude that the mother had established sufficient reasons for the court to refuse the making of an order for the return of the three children to Israel. An order for their return would not be permitted under fundamental principles to which Canada is committed under international law. Those principles relate to the protection of the human rights of the mother and each of the children, as well as to their fundamental freedoms to live free from serious risk of persecution.
