No grave risk exception

by | Jun 5, 2022

K.T. v. M.B., First instance court of Canada – Québec

30 June 2014, QCCS 3144

The parents are married and they have joint custody over the two children, age 11 and 13. The children have the French and Canadian nationality and they have lived in France until July 2013. The mother is a Canadian citizen. She has taken the children to Canada in July 2013.

The father applied for a return order.

The mother said that the father had consented, or at least had acquiesced to the relocation of the children. She also said that the children whan returned,  may face physical or psychological harm or otherwise be placed in an intolerable situation.

The Superior Court of Quebec found that the mother had wrongfully retained the children in Canada. The court had direct judicial communications with the French court and ordered the return of the children. The defences of the mother had not been granted.

The court found that:

  • Consent or acquiescence to the removal or retention must be clear, positive and unequivocal.
  • The risk of the children suffering psychological harm by returning without the taking parent is mitigated by arranging for appropriate measures to protect the taking parent to be in place upon return, through administrative and judicial co-operation with the authorities of the requesting State
  • Return may be ordered if the child is mainly concerned about being removed from the taking parent, rather than being opposed to returning to the requested State or fearing the left-behind parent.