Background
The parties, who separated in 2019 after living together in California, share a daughter, S.M., born in June 2016. A final consent order made in California in March 2023 granted the father primary physical custody of S.M. with her primary residence fixed in Pacifica, California, while providing the mother — who had relocated to Ontario — scheduled parenting time in both countries. During a winter holiday visit in December 2025, the mother failed to return S.M. to California on January 5, 2026, in direct breach of the California order. A California court issued a further return order on January 23, 2026, which the mother likewise declined to obey. S.M. had not attended school since her arrival in Canada on December 18, 2025.
The father applied in Ontario under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction for S.M.’s immediate return to her habitual residence. The Office of the Children’s Lawyer was appointed to represent S.M. and retained a child and adolescent psychiatrist, whose assessment indicated S.M. met the criteria for generalized anxiety disorder and consistently stated she wished to remain in Canada with her mother. S.M. threatened to “run away or hit or kick” anyone who tried to make her return to California.
Following a two-day hearing, the application judge ordered S.M.’s immediate return to California on May 21, 2026, finding that California was S.M.’s habitual residence, that the mother had wrongfully retained S.M. in Ontario, and that no Article 13 exception — including grave risk of physical or psychological harm — had been established. The mother appealed and brought an urgent motion before the Court of Appeal for a stay of the return order pending the appeal.
The Court’s Holding
Justice Madsen, sitting as a single motion judge, dismissed the stay motion. Applying the three-part RJR-MacDonald test — serious issue to be argued, irreparable harm, and balance of convenience — and emphasizing that the overriding consideration in child cases is the best interests of the child, the court found that the balance decisively favoured refusing the stay. While the court accepted the low threshold for a “serious issue” was met given S.M.’s strong stated objections, it assessed the appeal as having a low chance of success: S.M.’s preference to live in Canada does not rise to the Hague Convention’s high threshold of grave risk of harm or an otherwise intolerable situation, and the California courts remain the appropriate forum to consider parenting disputes.
On irreparable harm, the court gave little weight to the potential mootness of the mother’s appeal. The mother was herself in breach of two court orders, and her legal entitlement to appeal had to be viewed in light of her own non-compliance. On the balance of convenience, the court found that granting a stay would perpetuate harm to the father-daughter relationship and would undermine the important lesson — consistent with S.M.’s best interests — that court orders must be obeyed. The court also noted that, given the timing in June, S.M. could spend the summer with her father while the appeal was expedited, with no resulting prejudice to S.M. if the appeal ultimately succeeded.
The court ordered that all terms of the return order remain in full force and effect, encouraged the mother to accompany S.M. to California to assist with the transition, and directed that any appeal be scheduled on an expedited basis. No costs were awarded.
Key Takeaways
- A child’s consistent, clearly expressed preference to remain in Canada and threatened resistance to return does not, without more, satisfy the Article 13 “grave risk of harm or intolerable situation” exception under the Hague Convention.
- A parent’s own breach of existing custody orders weighs against granting a stay pending appeal; legal entitlement to appeal must be assessed in the context of the moving party’s non-compliance.
- In child cases governed by the Hague Convention, the best interests of the child are the paramount consideration on a stay motion, and those interests are generally served by returning the child promptly to their habitual residence pending resolution by the courts of that jurisdiction.
- The strength of a party’s appeal prospects is a relevant factor even at the low “serious issue” threshold, and a low chance of appellate success weighs against granting a stay.
Why It Matters
This decision reinforces the strict and consistent approach Ontario courts take to international child abduction cases under the Hague Convention. It makes clear that a child’s subjective preferences — even when supported by professional psychological assessment — will not routinely satisfy the high bar for an Article 13 grave-risk exception, particularly where the objections relate to household rules and structure rather than any evidence of abuse or danger. Courts will look critically at whether a child’s resistance has been shaped or encouraged by the retaining parent’s conduct and permissive environment.
The ruling also serves as a pointed warning to parents who defy international custody orders: breaching existing orders undermines the equitable standing needed to seek discretionary relief such as a stay, and prolonged unlawful retention will be characterized as harmful to the child’s relationship with the other parent. The court’s direction that the appeal be expedited signals the judiciary’s commitment to minimizing the disruptive effects of Hague Convention litigation on children’s lives.