The Hague Convention: Can You Successfully Raise the Defence of Grave Harm?
In Habimana v Mukundwa, a mother wrongfully removed her two children from Hong Kong and brought them to Canada. The question was whether the children would be exposed to a serious risk of psychological or physical harm upon return to Hong Kong. If so, the children would be permitted to stay in Canada.
Ms. Mukundwa and Mr. Habimana were living in Hong Kong with their two children. The couple experienced long-term marital conflict. In September 2018, the couple had a confrontation which led Ms. Mukundwa to flee to Ottawa with the children. Mr. Habimana was unaware of their departure.
Mr. Habimana sought an order to have the children returned to Hong Kong pursuant to the Children’s Law Reform Act, s.46 (the “Hague Convention”). The purpose of the Hague Convention is:
- To secure the prompt return of children wrongfully removed to or retained in any Contracting State
- To ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States
Normally, a child must be returned to their State of habitual residency if they have been wrongfully removed for a period of less than one year. In the present case, these pre-requisites were satisfied. However, Ms. Mukundwa raised the grave risk of harm defence.
A child can remain in Canada if they are at risk of serious psychological or physical harm, or if their return would place them in an intolerable situation. Ms. Mukundwa alleged that her marital difficulties pose a grave risk of harm to the children. Also, she alleged that her precarious immigration status could lead to an intolerable situation.
She requested an order permitting the children to stay in Canada.
Ultimately, the court found that there was no present risk of grave harm to the children. Therefore, the children were sent back to Hong Kong in accordance with the Hague Convention.
The court referenced an earlier case called Finizio v Scoppio-Finizio that addressed the grave risk of harm defence and the standard of risk required. The case law indicates that the risk of harm must be “severe” and “grave.” For example, in Pollastro v Pollastro, this defence was successfully invoked. The mother proved that the father was severely abusive, irrational, unpredictable, and suffered from substance abuse. Therefore, the children could stay in Canada.
The grave risk of harm defense was raised in the case of Hassan v Garib. This case involved allegations of spousal abuse. The court considered the following questions:
- Whether past violence was severe and likely to reoccur?
- Whether the past violence was life-threatening?
- Whether the applicant is amenable to control by the justice system?
Despite allegations of physical violence toward the mother, the court ultimately decided that the risk was not grave and that the abuse was unlikely to reoccur. Therefore, the children were sent back to their state of habitual residence.
In the present case, both parties agreed that their marriage was stressful and tense. However, there was no evidence to suggest that either child suffered physical or psychological abuse at the hand of their father. The court noted that the children communicated frequently with him and they did not fear him. Also, Mr. Habimana did not exhibit a pattern of violence toward Ms. Mukundwa. Therefore, their marital issues did not amount to a grave risk of harm.
The court also referred to the case S (J) v M(R) which outlined several situations that would amount to a severe risk of harm. A child may be permitted to stay in Canada if their country of habitual residency is experiencing the following:
- Rampant disease
- If the country will not afford the child appropriate protection
Further, none of these circumstances apply to the present case.
In the present case, Ms. Mukundwa relied on Mr. Habimana’s employment visa to remain in Hong Kong. Therefore, Mr. Habimana was in control of her visa renewal. She argued that her uncertain immigration status posed a risk to the children. In other words, Mr. Habimana could create an intolerable situation by refusing to renew her visa. However, the court refused to consider this an imminent risk. Mr. Habimana was willing to cooperate as indicated in his Affidavit.
Ultimately, the facts of this case did not merit the grave risk of harm defence. Therefore, the court ordered the return of the children to Hong Kong. Nonetheless, Mr. Habimana had to comply with several undertakings including the renewal of Ms. Mukundwa’s visa.