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Family - Child Abduction. A.A. v. Z.M.
In A.A. v. Z.M. (Ont CA, 2024) the Ontario Court of Appeal dismissed family law appellate motions, here for a stay of a prior order that "ordered the return of the child of the marriage" and another seeking "a limited publication ban". The parties resided in Bangladesh and one had filed a refugee claim.
On the stay (pending appeal) the court stated:A. Motion for stay
[9] The motion judge recognized that Bangladesh is not a signatory to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"). As such, the governing law for the motion is the Children's Law Reform Act, R.S.O. 1990, c. C.12. The motion judge referred to the decision in F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, where Kasirer J. said, at para. 59:In sum, parents whose children have been abducted from a non-party country can apply for their return pursuant to s. 40 of the CLRA. Unless the abducting parent demonstrates that Ontario courts should make parenting orders on any one of the four bases outlined above (ss. 22(1)(a) or (b) or 23, or parens patriae jurisdiction), the courts should decline to exercise jurisdiction with respect to a child [citation omitted]. [10] The motion judge, correctly in my view, held that neither s. 22(1)(a) nor (b) had any application to this case. He also concluded that s. 23 did not apply because there was no evidence that the child would suffer serious harm if returned to the father’s care in Bangladesh. I do not see any error in the motion judge’s conclusion on that point either.
[11] The mother’s submissions on the stay request focussed almost entirely on the decision of this court in A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81, leave to appeal refused, [2020] S.C.C.A. No. 402. It is the mother’s position that, if there is a refugee claim made then, in all circumstances, no return order should be made until the refugee claim is determined. Indeed, the mother took the position that this should be the result even if the record before the court showed that there was no merit to the refugee claim.
[12] This contention is based on certain statements in A. (M.A.) including:Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers. (para. 63)
Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim. (para. 68)
A return order must not be made under s. 40(3) in the face of a pending refugee claim. (para. 72) [13] In my view, the mother reads the decision in A. (M.A.) in much too literal a fashion. That decision cannot be read separately from the factual foundation on which it was based. In that case, there was evidence of serious harm to the mother and the children arising from an abusive relationship that caused them to leave their home country of Kuwait. Indeed, there was evidence directly from one of the children (age 11) of the prospect of harm to him from his father if he was returned to Kuwait. There was also evidence that the mother had taken the children from Kuwait, brought them to Canada, and immediately made an asylum claim.
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[17] In my view, the decision in A. (M.A.), properly and fairly read, does not stand for the blanket proposition that, in every case where a refugee claim is made, the court is without jurisdiction to exercise its authority under the CLRA. If that were to be the case, it would be simply too easy to thwart the imposition of necessary remedies that are intended to be applied when a child is abducted from their habitual home.
[18] I would also note, on this point, that refugee claims can take months, in some cases years, to resolve. If the child in this case was required to stay in Canada while that process unfolds, she could well wind up spending more time in this foreign country than she has in her home country. If that were to occur, it would then add an additional level of complication as to the best interests of the child if a determination was subsequently made denying the refugee claim. The child would then be returned to her home country with less connection to it than to this country.
[19] I would add, on the point of the best interests of the child, that she is currently living in a shelter with no support structure whereas, if returned to Bangladesh, she would be in the country of her birth, with supportive relatives, a home, and a father who is gainfully employed with a steady income.
[20] The test for a stay is well-established. It requires a serious issue, irreparable harm to the applicant and that the balance of convenience favours the applicant. Because the test for a serious issue is very low, I am prepared to accept that the debate over the scope of the decision in A. (M.A.) can constitute a serious issue. The irreparable harm alleged is that the mother and child will lose their refugee claim if they return to Bangladesh. I note that there is no requirement that the mother return to Bangladesh. It is only the child that must do so under the motion judge’s order. If the mother were to remain here and obtain refugee status, she could always seek custody of her child through the courts of Bangladesh.
[21] Regardless of those considerations, there has to be evidence that there is some merit to the refugee claim – perhaps a scintilla of evidence – and here there is none. Irreparable harm cannot arise from the loss of a proceeding which has no apparent merit.
[22] Also on the irreparable harm issue, the mother argues that she will suffer irreparable harm if the child is returned to Bangladesh since there are “no protections in place” to ensure that the child is returned to Ontario if the appeal is successful. In response, the father has undertaken to return the child to Ontario if the appeal is successful. I appreciate that the father’s undertaking is not a guarantee that the child will be returned. However, if the father does not do so, the mother can seek the assistance of the courts in Bangladesh. I am told that the courts in Bangladesh apply the best interests of the child test that our courts do. I assume that the courts in Bangladesh will take all relevant factors into consideration in reaching a decision on any such application by the mother. In any event, the risk that the mother might not be successful does not constitute irreparable harm. I note, on this point, that the court in F. v. N. said that “protective measures”, such as a party’s undertaking, can attenuate the risk of harm. I also note the point made in F. v. N. where Kasirer J. said, at para. 88:The proper approach recognizes that inconsistencies between local and foreign legal regimes will usually not amount to serious harm if the best interests of the child principle remains the paramount consideration in all decisions concerning children. [23] In terms of the balance of convenience, I have already set out that the child was born in Bangladesh and has only known that country. She has a home, support, and financial security there. The balance of convenience favours her return.
[24] The motion for a stay is dismissed.
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