Does imposition of undertakings have a mitigating effect on a return order?

[21] Finizio v. Scoppio-Finizio, supra, decided in 1999, suggested that imposition of undertakings can have a potential mitigating effect on the harm that might come from a return order. The court required the father requesting the order to undertake not to “molest, harass, or annoy” the mother.

[22] Despite the suggestion in Finizio v. Scoppio-Finizio that undertakings could provide a useful tool to control risk of harm flowing from orders of return, later Canadian cases have given scant attention to the issue of when and how undertakings might actually mitigate a risk of harm of a return order in cases of documented domestic violence.[10]

[23] In Cannock v. Fleguel, supra, the court at paragraph [28] made a general observation that imposition of appropriate undertakings may modify a potential risk of harm of a return order, so that Article 13(b) grounds will not be made out. The court did not deal with specific undertakings that might have been appropriate in that case, because the appeal was taken before the judge at first instance had considered the undertakings issue.

[24] In Lombardi v. Mehnert, supra, footnote 7, the court noted that the father had been convicted of assaulting the mother previously and that he had breached a restraining order. The court observed: