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Family - Hague Convention (2). A.A. v. Z.S.M.
In A.A. v. Z.S.M. (Ont CA, 2025) the Ontario Court of Appeal allows an appeal, here where the issue involved "the interplay between provincial family law and federal immigration and refugee laws and obligations in the context of a child’s alleged wrongful retention in Canada".
Here the court considers CLRA s.22(1)(b) ['Jurisdiction' (child is not habitually resident in Ontario)] and 23(b) ['Serious harm to child']:[1] This appeal involves the interplay between provincial family law and federal immigration and refugee laws and obligations in the context of a child’s alleged wrongful retention in Canada. The question here is whether the court below erred in ordering the child’s return from Ontario to her habitual residence of Bangladesh under s. 40 [SS: 'Interim powers of court'] of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), while the child and mother’s refugee applications under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) were pending. The further context comprises disputed allegations of domestic violence that form the basis for the appellant mother’s refugee application and her request that the court assume jurisdiction over the parties’ dispute under s. 23 of the CLRA [SS: 'Serious harm to child'] on the ground that the child would face “serious harm” if ordered returned to Bangladesh.[2]
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(i) Section 22(1)(b) of the CLRA
[36] Section 22(1)(b) of the CLRA allows the court to assume jurisdiction over a child not habitually resident in Ontario if satisfied of a list of criteria, including that there is no pending application related to parenting in another jurisdiction where the child is habitually resident.
[37] The motion judge found that the test under s. 22(1)(b) was not met.
[38] First, the motion judge found that the child did not have a real or substantial connection with Ontario, as required by s. 22(1)(b)(v), for the following reasons: “The child’s family, including siblings from [the appellant’s] prior marriage, are in Bangladesh. Bangladesh is where [the respondent] worked … [the child] has only lived in Bangladesh and there are no family, friends or supports for the child (or [the appellant]) in Ontario.”
[39] Second, the motion judge found that a parenting proceeding had commenced in Bangladesh. These findings were rooted in the record and the appellant points to no legal error in the analysis.
[40] The appellant argues that she was not provided adequate assistance from the motion judge as to the definition of habitual residence under the CLRA. I do not agree. As the motion judge noted, “[the appellant] confirmed that she was advised of the law by Justices Kraft and Horkins. I also summarized the law with respect to habitual place of residence.” The transcript reveals further that the motion judge assisted the appellant to provide relevant evidence on this issue.
[41] I therefore see no basis to interfere with the motion judge’s disposition of jurisdiction under s. 22(1)(b) of the CLRA.
(ii) Section 23 of the CLRA
[42] I do not reach the same conclusion on the analysis under s. 23 of the CLRA. In my view, the motion judge erred here in too narrowly construing the meaning of “serious harm” under s. 23(b), thereby failing to address relevant facts that could give rise to “serious harm”.
[43] Section 23 provides a basis on which “a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child” if the following criteria are met:(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario. [44] When a child is taken to another country by one parent without the other’s consent, it will generally align with the child’s best interests to promptly return them to the jurisdiction of their habitual residence. But the court must be satisfied that the serious harm exception under s. 23(b) of the CLRA does not apply. As Kasirer J., writing for the majority, said in F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387 (“F. v. N. (SCC)”), at para. 66, “[s]imply put, the presumption in favour of the jurisdiction of habitual residence must give way to the imperative of protecting a child when serious harm is made out.”
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(i) Allegations of domestic violence
[47] The motion judge accepted that “[the appellant] may have legitimate safety concerns for herself” but stated he was “not weighing in on whether the abuse occurred or not”. It was an error not to address whether the mother’s allegations of domestic violence against her could give rise to serious harm to the child under s. 23(b) of the CLRA. As the Supreme Court reiterated in Barendregt, at para. 143, "family violence" includes children's direct and indirect exposure to violence between family members, and exposure to violence against a parent puts children at risk of emotional harm and behavioural problems throughout their lives.
[48] For the purpose of determining the issue of serious harm under s. 23(b) of the CLRA, the motion judge was required to consider whether he could resolve the parties’ dispute over “whether the abuse occurred or not” as the allegations made up the “crux of the parental dispute” in the case: Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, at para. 48.[8] The motion judge did not address this issue.
[49] The motion judge also should have considered whether an oral hearing, beyond only the appellant’s oral evidence, was required to ascertain the significance of the domestic violence allegations for the purpose of the serious harm analysis. Where serious issues of credibility are involved in return applications involving refugee children, “fundamental justice requires that those issues be determined on the basis of an oral hearing”: A.M.R.I. v. K.E.R., 2011 ONCA 417, 106 O.R. (3d) 1, at para. 125. As this court further instructed in Zafar, at para. 77, the motion judge should have considered whether: “[t]he allegations of serious harm to the mother were sufficient…to require a more robust evidentiary hearing before the court could fairly conclude that the mother had not met her onus of showing serious risk of harm to the child if she were returned.” The motion judge erred in failing to engage in this analysis and in deferring the issue to the Bangladeshi courts.
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[53] As the Supreme Court instructed in F. v. N. (SCC), the mere fear of an unfavourable outcome under the laws of another jurisdiction is insufficient to constitute serious harm because s. 23(b) “must not be interpreted so as to permit child abduction to become an approved technique for forum-shopping”: at para. 87, citing F. v. N., 2021 ONCA 614, 158 O.R. (3d) 481, at para. 79, per Hourigan J.A. Rather, it must be that “foreign laws are so profoundly irreconcilable with Ontario law that remitting the matter to the foreign courts would constitute serious harm within the meaning of the [CLRA]”: F. v. N. (SCC), at para. 88.
[54] As I have just explained, the motion judge did, in my view, err in deferring the allegations of domestic violence without directly addressing their potential for serious harm to the child. He did not, however, err in assuming that the appellant would have a fair hearing in Bangladesh. The appellant did not provide evidence of this and so did not meet her onus to show serious harm arising in this way.
(ii) Separation of the child from her primary caregiver
[55] As part of his analysis, the motion judge should have considered the related question of whether a return order would separate the appellant from the child and whether the separation from the child’s primary caregiver would cause the child serious harm. The motion judge found that the appellant had “legitimate safety concerns” and should have therefore considered the possibility that the appellant would not return to Bangladesh. Here, the appellant had always been the child’s primary caregiver. The child is not yet 19 months old and is still nursing. The motion judge should have considered whether a return order would, in this way, cause serious harm to the child.
[56] Separation from a child’s primary caregiver may also give rise to “serious harm” under s. 23(b). F. v. N. (SCC) makes clear that while this factor is not determinative, separating children from their primary caregiver "should never be considered lightly": at paras. 77-78. As F. v. N. (SCC) further instructs, at paras. 76-81, if a return order would result in such separation, the court must undertake a child-centred, highly individualized analysis and consider such factors as: the characteristics of the child including age, stage of development and special needs; whether the return will have a negative impact on the child’s wellbeing; and whether the child will be returned to a safe and familiar environment with a capable parent and other known caregivers.
[57] This analysis should also consider whether there are legitimate barriers to the return of the primary caregiver, such as significant obstacles to employment or risks to safety, including evidence showing that the parent seeking the return is responsible for child abuse or intimate partner violence to the primary caregiver: F. v. N. (SCC), at paras. 81-82. However, the primary caregiver’s refusal to return, where unjustified, is not in the best interests of the child. Accordingly, to avoid a parent creating serious harm and then relying on it through their own refusal to return, “courts should carefully scrutinize refusals to return when there is no impediment to the parent re-entering and remaining in the country of the child’s habitual residence”: F. v. N. (SCC), at para. 82.
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(iii) Refugee applications
[59] Finally, the motion judge did not consider in his serious harm analysis the potential loss of the child’s (and appellant’s) refugee rights. The appellant, OCL and interveners argue that the return of the child to Bangladesh would likely result in the deemed abandonment of her refugee application. They argue further that the prospect of the deemed abandonment of the appellant’s refugee application if she leaves Canada to follow the child could result in the appellant staying in Canada and the child being separated from her primary caregiver, as earlier discussed. It is submitted that it would be difficult if not impossible to resurrect their applications outside of Canada.[9]
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