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Family - Hague Convention (2). Ahmed v. Abdelmoaein
In Ahmed v. Abdelmoaein (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here from a dismissal of "the application for the return of the child" to the UK.
Here the court considers the Hague Convention:[1] .... The central issue is whether the application judge’s decision not to order the return of the child was an error resulting from her improper interpretation and application of the terms “consent” and “acquiescence” as they appear in article 13(a) of the Hague Convention. For the reasons that follow, I would allow the appeal and order the return of the child to the U.K., the child’s place of habitual residence as found by the application judge.
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[24] The stated “Purposes” of Part III of the CLRA, through which the Hague Convention is incorporated into Ontario law, include, at ss. 19(b) and (c):(b) to recognize that the concurrent exercise of jurisdiction … in relation to the determination of decision-making responsibility with respect to the … child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;
(c) to discourage abduction of children as an alternative to the determination of decision-making responsibility by due process. [25] The Hague Convention has two stated objectives:(a) to ensure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively represented in the other Contracting State.
See CLRA, at s. 46; Hague Convention, at art.1. [26] Both Canada and the U.K. are contracting states of the Hague Convention. All signatories to the Hague Convention are presumed to make decisions based on the child's best interests: Leigh v. Rubio, 2022 ONCA 582, at para. 45.
(1) The Hague Convention Framework
[27] As this court explained in Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 40, determining whether a child should be returned from Ontario to their habitual residence under the Hague Convention requires a two-step analysis:a. The court must first determine when the alleged wrongful removal or retention took place, and in which state the child was habitually resident immediately prior to that removal or retention. If the child is found to have habitual residence in Ontario at the time of the removal or retention, the Convention does not apply.
b. If Ontario was not the child’s place of habitual residence at the time of the removal or retention, the court must order the return of the child unless one of the enumerated exceptions under articles 13 or 20 applies. These exceptions prevent the return of a child to a place where they are at grave risk of physical or psychological harm or returning the child would otherwise place the child in an intolerable situation, or where returning the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. The return of the child is also not required where the left-behind parent was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. [28] It is the engagement of this consent/acquiescence exception that is at issue in this appeal.
[29] Article 13(a) of the Hague Convention provides as follows:Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
Nonobstant les dispositions de l'article précédent, l'autorité judiciaire ou administrative de l'Etat requis n'est pas tenue d'ordonner le retour de l'enfant, lorsque la personne, l'institution ou l'organisme qui s'oppose à son retour établit:a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. (Emphasis added.)
a) que la personne, l'institution ou l'organisme qui avait le soin de la personne de l'enfant n'exerçait pas effectivement le droit de garde à l'époque du déplacement ou du non-retour, ou avait consenti ou a acquiescé postérieurement à ce déplacement ou à ce non-retour. (Accent ajouté.) [30] The issue in this appeal is whether the appellant “had consented to or subsequently acquiesced in” the retention of the child in Canada. As this court explained in Katsigiannis v. Kottick-Katsigiannis (2001), 2001 CanLII 24075 (ON CA), 55 O.R. (3d) 456 (C.A.), at paras. 46 and 47, the terms “consent” and “acquiescence” in article 13(a) of the Hague Convention should be given their plain and ordinary meaning. To consent is “to agree to something, such as the removal of the child from their habitual residence,” and to acquiesce is “to agree tacitly, silently, or passively to something, such as the child remaining in a jurisdiction which is not their habitual residence.” Consent is given beforehand and is usually explicit, and acquiescence occurs afterwards and is generally passive – unstated consent, determined by words and conduct: Katsigiannis, at paras. 47-48.
[31] In Katsigiannis, at para. 49, the court also explained that “to trigger the application of the article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence.” The test is subjective on the part of the left-behind party. In other words, the left-behind party must have subjectively intended to consent or acquiesce. The burden is on the party seeking to justify the wrongful removal or retention. That party must show some conduct by the other party which is inconsistent with the summary return of the child to their habitual residence: Katsigiannis, at paras. 49 and 52.
[32] Consent applies to a particular time. For example, in Katsigiannis, the fact that the father consented to the mother’s departure to Ontario with the child for a vacation – that is, he consented to the child's removal – did not constitute consent to the retention of the child in Canada.
[33] Whether a parent consented to or acquiesced in a removal or retention for the purposes of the article 13(a) exception is a factual determination and is therefore entitled to considerable deference on appeal: Unger v. Unger, 2017 ONCA 270, at para. 7. Absent a serious misapprehension of evidence or an error in law, this court will not intervene: Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, at para. 5.
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[36] In my view, the application judge erred in her analysis of consent and acquiescence. As I will explain, the application judge conflated the concepts of consent to or acquiescence in retention with consent to relocation.
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[42] This analysis conflates consent or acquiescence to a relocation or move with the child to Canada at some future date with consent or acquiescence to the retention of the child in Canada at the time of the retention. It is the latter that is contemplated in article 13(a) of the Hague Convention; the parties’ intention to move to Canada at a later date has no bearing on the article 13(a) analysis. As a result, the application judge erred in using the finding of consent or acquiescence to relocation to satisfy the article 13(a) requirement that the father had consented to or subsequently acquiesced in the child remaining in Canada at the time of the wrongful retention on September 28, 2023.
[43] The relevant legal question was whether the appellant had consented to the retention as of September 28, or whether he acquiesced in the retention sometime after that date. As noted above, the application judge found that, “[o]n September 28, 2023, the [respondent] told the [appellant] that the family should remain in Canada” and “[the appellant] objected and returned to the UK without the [respondent] and child and commenced the process of the Hague application before the court.” It is clear from these findings that the appellant did not consent to the retention on September 28, 2023.
[44] It is also clear from these findings that the appellant took immediate steps such that he could not be said to have subsequently acquiesced in the retention. Acquiescence requires that the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting and is not going to assert his or her right to demand the summary return of the child: Jackson v. Graczyk, 2007 ONCA 388, 86 O.R. (3d) 183, at para. 50. As the application judge found, the appellant immediately objected and has, since that date, sought the child’s return through the Hague Convention process.
[45] In my view, therefore, there was no consent or acquiescence to the respondent’s wrongful retention of the child in Ontario and I would order the return of the child forthwith to his place of habitual residence located in London, United Kingdom, pursuant to article 12 of the Hague Convention and s. 40 the CLRA. . 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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