Adjournment sought in light of ongoing application with Immigration and Refugee Board
In a case involving an ongoing application with the Refugee Protection Division of the Immigration and Refugee Board of Canada (IRB), the Ontario Superior Court of Justice declined to adjourn an application for the return of a child to Hong Kong.
C. v. M., 2026 ONSC 892, revolved around the parties’ child. In June 2025, the applicant applied for the return of the child, then 14 years old, under the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35. The applicant obtained initial ex parte relief.
The respondent brought the refugee application with the IRB. The Office of the Children’s Lawyer (OCL) began representing the child’s interests.
James Diamond, as case management judge, sought to schedule the application hearing expeditiously under r. 37.2 of the Family Law Rules, O Reg 114/99.
The respondent’s counsel shared that the IRB set its hearing for late January. In November 2025, after a case conference, Diamond issued an endorsement scheduling the Hague Convention application hearing for Feb. 23, following the anticipated IRB hearing.
At another case conference, the respondent sought to adjourn the Hague Convention application hearing, as the IRB had rescheduled its hearing. The respondent’s counsel confirmed that the IRB reset its hearing for the third week of March.
The OCL supported the requested adjournment, while the applicant opposed it.
Adjournment denied
Exercising his discretion as case management judge, Diamond dismissed the request to adjourn the Hague Convention application, with the hearing proceeding as scheduled on Feb. 23.
He acknowledged the difficulty of ruling on this issue, given the interplay between:
- the Superior Court’s statutory and common law obligation to hear Hague Convention applications as swiftly as possible and ideally adjudicate them in six weeks, and
- its obligation to show a high degree of deference to IRB decisions, as required by Kirby v. Woods, 2025 ONCA 601
Assuming that the IRB hearing proceeded in the third week of March and the IRB released a decision within a reasonable period afterward, Diamond noted that the parties’ counsel and the OCL would be available to argue the Hague Convention application in mid-May.
According to Diamond, if he adjourned the Hague Convention application, the court would hear it in May 2026 or later, then render a decision over a year after the issuance of the application, by which time the child might be 16 years old.
Diamond held that such a lengthy delay would risk hardship to the child, prevent appellate review, and violate Canada’s international obligations.
As the IRB had already rescheduled its hearing once, Diamond saw no guarantee that it would proceed in late March 2026. Even if the IRB hearing did take place as scheduled, he also saw no guarantee of when the IRB would render its decision, at which point appeals in the IRB proceeding might follow.
The respondent and the OCL expressed concerns that, if the IRB released its decision after the completion of the hearing and/or decision in the Hague Convention application, requests to introduce fresh evidence, including the IRB decision, would complicate appeals from that decision.
Diamond noted that this argument assumed that the IRB decision would favour the respondent. According to Diamond, even if it did, the Ontario Court of Appeal could:
- address such requests, as it did in Kirby
- give guidance if he exercised his discretion as case management judge based on an incorrect legal principle
Diamond stressed the need to move the Hague Convention application forward. Citing Office of the Children’s Lawyer v. Balev, 2018 SCC 16, he acknowledged the sound policy reasons for Hague Convention applications to proceed as expeditiously as possible.
Diamond noted that a judge hearing a Hague Convention application:
- retained the discretion to move as expeditiously as necessary, pursuant to Balev and r. 37.2
- could try to set the hearing of a Hague Convention application after the release of an IRB decision, when doing so would be reasonable and would align with the concerns raised in Balev
However, according to Diamond, if a judge hearing a Hague Convention application waited for the IRB to finalize and release a decision in every single case, this would lead to “party-driven” applications, which Balev deemed improper.
