Background
The parties’ five-year-old daughter was born and raised in Morocco. After the parents divorced, the mother had primary physical custody, while the father retained parenting time and legal-guardianship rights under Moroccan law. In March 2025, the mother took the child to Ottawa without the father’s knowledge or consent.
The father sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction. The Superior Court found that Morocco was the child’s habitual residence, that her removal was wrongful, and that no exception to mandatory return applied. It ordered her return subject to undertakings by the father.
Before the return proceeding, a Moroccan court had convicted the father of assault and violence against the child, imposing a suspended one-month sentence and a fine; his appeal remained unresolved. A separate Moroccan order, later upheld on appeal, revoked the mother’s parenting rights and placed the child exclusively with the father. Evidence also showed substantial legal and practical barriers to the mother returning to Morocco and resuming care.
The Court’s Holding
The Court of Appeal allowed the mother’s appeal solely because the application judge mishandled the father’s criminal conviction when assessing the grave-risk exception in art. 13(b) of the Hague Convention. Although the judge properly accepted the Moroccan conviction as a matter of comity, she considered it separately from the child’s near-certain separation from her primary caregiver and did not adequately examine the child’s prospective living arrangements or available safeguards.
A grave-risk assessment must be forward-looking, child-centred, holistic, and cumulative. Returning this child to the sole care of a parent convicted of assaulting her, when her mother faced significant barriers to returning and there were no meaningful protective or mitigating measures, would expose the child to a grave risk of harm.
The court set aside the return order, dismissed the father’s Hague Convention application, and declared that Ontario courts have jurisdiction under s. 23 of the Children’s Law Reform Act to decide parenting arrangements. It remitted those issues to the Superior Court, awarded the mother $15,000 in appeal costs, and ordered no costs at first instance.
Key Takeaways
- A foreign conviction for assaulting the child must be respected as proof that the assault occurred unless altered through the foreign legal process.
- Courts assessing grave risk under art. 13(b) must consider all relevant circumstances cumulatively, including separation from a primary caregiver, the proposed placement, and concrete safety measures.
- The court upheld the finding that Morocco was the child’s habitual residence and found no error in the treatment of Moroccan law, the mother’s allegations of partner violence, or the child’s objection to return.
- A pending refugee claim is not equivalent to an already favourable refugee determination; the court did not decide its effect because the grave-risk finding resolved the appeal.
Why It Matters
The decision clarifies that the Hague Convention’s demanding grave-risk exception cannot be assessed by isolating each potential danger. Where the proposed caregiver has been convicted of assaulting the child, courts must examine the child’s actual circumstances after return, including whether the primary caregiver can remain involved and whether effective safeguards exist.
The judgment also preserves the Convention’s usual deference to the child’s habitual residence and foreign legal systems. The result turned not on differences between Moroccan and Ontario family law, but on the specific, cumulative risk this child would face if returned to her father’s sole care.