Can Ontario Courts Order a Child Returned to Germany Under the Hague Convention?

What is the Hague Convention on international child abduction?

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that requires courts to promptly return children to the country where they normally lived before being taken or kept away without the other parent’s consent. Ontario courts apply this treaty when a parent brings a child to Canada — or keeps a child here — in breach of another parent’s custody or access rights. The court’s job is not to decide who should have custody; it is simply to send the child back so the proper court in the home country can make that decision.

In Özbey v. Özbey, 2026 ONSC 2026 (CanLII), the Ontario Superior Court of Justice granted an application under the Hague Convention and ordered two children returned forthwith to Germany, where a court in Essen had already made parenting orders.

Where must a child normally live for Ontario to order a return?

A child’s habitual residence is the country where the child normally lived before the wrongful removal or retention. It is a factual question, decided on where the child’s life was genuinely based — home, school, family, and daily routine — not on a parent’s later intentions or where the child happens to be now.

In Özbey, the children’s habitual residence was Germany, where a court in Essen had already made parenting orders. Keeping them in Ontario without the other parent’s consent amounted to wrongful retention, which is what triggered the obligation to order their return.

What counts as wrongful removal or retention?

A removal or retention is wrongful when it breaches the custody or access rights another person held under the law of the child’s habitual residence, and those rights were actually being exercised. Once wrongful retention is established and the child habitually resided in a Convention country, Ontario courts must order the return — unless a narrow exception applies.

What are the exceptions to a return order?

The Convention’s exceptions are limited and hard to meet. The two raised most often are:

• Grave risk (Article 13(1)(b)). Return can be refused if it would expose the child to a grave risk of physical or psychological harm or an intolerable situation. The threshold is high. In this case the court confirmed that a nascent refugee claim does not create a presumption of grave risk — the Hague process and refugee proceedings are legally separate, and one does not automatically pause the other.
• The child’s objection (Article 13(2)). A court may decline return where the child is of sufficient age and maturity and firmly objects to going back. Mere ambivalence or a preference to stay falls short of a true objection.

Does a return order decide custody?

No. A return order does not decide who gets custody. It simply sends the child back to the country of habitual residence so that country’s courts — which already have jurisdiction — can determine parenting arrangements. Here, that meant returning the children to Germany so the Essen court could carry on.

What this means for parents

If a child has been brought to or kept in Ontario in breach of another parent’s rights, the Convention strongly favours a prompt return, and defences like grave risk or a child’s objection rarely succeed. A pending immigration or refugee claim will not, on its own, block a return order. Parents on either side of an international child abduction issue should get advice early, because these applications move quickly.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.