In a non-Hague Convention case, what is the test for a stay of a return order where the parties' best interests of the child are compromised by postponing the determination of the children’s best interests in the country where they are habitually resident?

Ontario, Canada


The following excerpt is from N. v. F., 2021 ONCA 688 (CanLII):

This principle may not apply in Hague Convention cases where the best interests of the child are compromised by postponing the determination of the children’s best interests in the country where they are habitually resident: J.P.B. v. C.B., at para. 33. Things are different, however, in non-Hague Convention cases. There can be no assumption that a non-signatory state will determine parenting rights based on the children’s best interests: Geliedan v. Radwah, 2020 ONCA 254, at paras. 37 and 38. I am persuaded that in non-Hague Convention cases where a stay of a return order is sought, the primary consideration in assessing irremediable harm is the risk of irremediable prejudice to the children.

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