Strong Child Preferences Are Not Enough: Ontario Court of Appeal Reaffirms Hague Convention Return Principles: Mazzeo v. Mazzeo, 2026 ONCA 447
Overview
In Mazzeo v. Mazzeo, the Ontario Court of Appeal dismissed a mother’s motion to stay an order requiring the immediate return of her 10-year-old daughter to California under the Hague Convention on the Civil Aspects of International Child Abduction, pending the mother’s appeal.
The child had travelled from her primary residence in California to Ontario for scheduled holiday parenting time. Contrary to a California parenting order, the mother failed to return the child at the end of the visit. The father commenced Hague Convention proceedings in Ontario seeking the child’s return. The application judge found that California remained the child’s habitual residence, that the child had been wrongfully retained in Ontario, and that none of the exceptions under Article 13 of the Hague Convention applied.
The Child’s Objections
The Office of the Children’s Lawyer was appointed to represent the child, with assistance from a clinical investigator. The child consistently expressed a strong desire to remain in Canada with her mother and reported anxiety about returning to California. She described her father’s household as overly structured and lacking warmth, objecting to chores, household expectations, and discipline. A psychiatrist retained by the OCL concluded that the child met the criteria for generalized anxiety disorder and confirmed her opposition to returning.
Despite this evidence, the application judge concluded that the child’s concerns reflected preferences regarding parenting style and household rules rather than evidence establishing a grave risk of physical or psychological harm or an intolerable situation under Article 13(b). The judge found that the child was effectively seeking to extend what had become an indefinite holiday from school and the ordinary expectations of daily life.
Court of Appeal Decision
Applying the RJR-MacDonald test for a stay pending appeal, the Court of Appeal accepted that the appeal raised a serious issue because of the significance of the child’s objections. However, the Court observed that the appeal had a low likelihood of success because the application judge’s decision was consistent with the purposes of the Hague Convention.
The Court emphasized that a child’s preference to reside with one parent does not justify unilateral non-compliance with an existing parenting order and does not, without more, satisfy the high threshold required to establish a grave risk of harm or an intolerable situation. It also noted that any parenting and decision-making issues, including the child’s wishes, remained matters for the California courts to determine.
The Court refused the stay, finding that the balance of convenience and the child’s best interests favoured an immediate return to California. It also reaffirmed that compliance with court orders is fundamental, observing that “a court order is not a suggestion.”
Why This Case Matters
Mazzeo reinforces several important principles for Hague Convention proceedings:
• A child’s strongly held wishes, even when supported by OCL evidence and mental health assessments, will not necessarily satisfy the Article 13 exceptions where the evidence establishes preferences rather than a grave risk of harm.
• Allegations of anxiety or dissatisfaction with one parent’s household must be distinguished from evidence demonstrating an intolerable situation.
• Parenting disputes and best interests determinations remain matters for the courts of the child’s habitual residence.
• Courts continue to emphasize the importance of respecting existing parenting orders and discouraging unilateral retention of children across international borders.
The decision provides useful guidance for practitioners on the evidentiary threshold required to resist a return application under the Hague Convention and illustrates the limited role that a child’s objections will play unless they engage the narrow exceptions set out in Article 13.