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Family - Interlocutory. 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 the "ordering an automatic stay of the CLRA proceedings in the face of the appellant’s and the child’s refugee applications":[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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[62] The determination of this issue, as framed by the parties, OCL and interveners, depends on the correct interpretation of this court’s decision in M.A.A. It is accordingly necessary to consider M.A.A. in the broader context of the relevant provisions of the CLRA and the IRPA, as interpreted by this court in A.M.R.I. and the majority of the Supreme Court in F. v. N. (SCC). I will discuss this context before turning to an analysis of M.A.A.
[63] In sum, as I explain in the following paragraphs, M.A.A. does not bar return orders under the CLRA in the face of outstanding refugee applications. At the same time, F. v. N. (SCC) does not require the return of a child even where the court is satisfied that the child has been wrongfully removed or retained. Moreover, I reject the suggestion by the appellant, OCL and interveners that M.A.A. mandates a bifurcated analysis, namely, that ss. 23 and 40 be considered independently of each other. As the majority in F. v. N. (SCC) clarifies, ss. 23 and 40 of the CLRA should be considered together:The return order procedure in s. 40 of the CLRA thus starts from the premise that the best interests of the child are aligned with their prompt return to their habitual place of residence so as to minimize the harmful effects of child abduction. Returning the child to the jurisdiction with which they have the closest connection is also understood to be in the child’s best interests. The analysis of the jurisdictional questions contemplated in s. 40, including the risk of serious harm in s. 23, starts from this ordinary alignment of best interests and focuses on factors that would tend to establish, as an exception, serious harm if the child was returned. [64] As the majority goes on to explain, the assessment is not a comprehensive comparison of the child’s life in the two jurisdictions or a broad-based best interests test as is conducted for a parenting order on the merits. At the same time, s. 23 establishes the exceptional circumstances under which it is no longer appropriate to order a return under s. 40.
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(b) Sections 23 and 40 of the CLRA
[68] The parties’ respective positions posit different interpretations of ss. 23 and 40 of the CLRA to which I now turn. What do ss. 23 and 40 say and how have they been interpreted?
[69] For ease of reference, I reproduce again the relevant provisions of s. 23(b) under which a court may assume jurisdiction:(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.
[Emphasis added.] [70] In the circumstances of a proven wrongful removal or retention of a child, s. 40 provides the court with interim powers with respect to decision-making responsibility, parenting time and contact as they relate to extra-provincial matters. I have underlined certain provisions reproduced below to illustrate the discretionary nature of the interim powers of the court and, importantly for an understanding of the permissible ambit of M.A.A., the absence of any mandatory stay or return order requirement, even in the context of outstanding refugee applications:Section 40. Upon application, a court,
(a) that is satisfied that a child has been wrongfully removed to or is being wrongfully retained in Ontario; or
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May do any one or more of the following:
1. Make such interim parenting order or contact order as the court considers is in the best interests of the child.
2. Stay the application subject to,
i. the condition that a party to the application promptly commence a similar proceeding before an extra-provincial tribunal, or
ii. such other conditions as the court considers appropriate.
3. Order a party to return the child to such place as the court considers appropriate and, in the discretion of the court, order payment of the cost of the reasonable travel and other expenses of the child and any parties to or witnesses at the hearing of the application.
[Emphasis added.] [71] Section 40 appears in Part III of the CLRA respecting decision-making responsibility, parenting time, contact, and guardianship. Section 19 sets out the purposes of Part III. The purposes highlighted in subsections 19(b) and (c) are relevant to this appeal:(b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same 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 the abduction of children as an alternative to the determination of decision-making responsibility by due process… [Emphasis added.] (c) F. v. N. (SCC)
[72] The governing case on the meaning of and the interplay between ss. 23 and 40 is F. v. N. (SCC). In F. v. N. (SCC), the Supreme Court considered how ss. 23 and 40 of the CLRA operate together and set out an applicable analytical framework for their consideration.
[73] F. v. N. (SCC) involved the application by a father for an order returning the children of the marriage to Dubai under s. 40 of the CLRA. The mother had brought the children to Ontario for a visit and refused to return to Dubai where the family had resided. She asked the court to assume jurisdiction under s. 23(b), claiming that her lack of residency status in the United Arab Emirates gave rise to serious harm due to the likelihood of the children’s separation from her, their primary caregiver, if the court ordered their return. She did not allege domestic violence, nor were there outstanding refugee applications.
[74] The majority of the Supreme Court upheld the trial judge’s determination that in all the circumstances of the case, the child would not suffer serious harm. The protective circumstances in that case included the father’s undertaking to ensure the mother’s independent residency in Dubai by purchasing property for her in her name. The majority then took the additional step of incorporating the father’s undertaking in the court’s order.
[75] Drawing on the earlier referenced purposes set out in s. 19 of the CLRA, the majority held, at para. 63, that the CLRA operates on the rebuttable presumption that in the case of a found wrongful abduction or retention, “the child’s best interests are aligned with their prompt return to the jurisdiction of their habitual residence unless there are exceptional circumstances that justify Ontario courts taking up jurisdiction”.
[76] The majority further confirmed that s. 23 of the CLRA stands as such an exception because it enshrines “the imperative of protecting a child when serious harm is made out”: at para. 66. The majority clarified that a determination of serious harm under s. 23(b) is not the same as a determination of the merits of the parenting dispute: at paras. 67-68. Section 23 addresses a jurisdictional issue and should be read with the goal of the CLRA in mind: that the decision on the merits is made by the appropriate authority: at para. 67.
[77] The majority in F. v. N. (SCC) noted that s. 40 governs return orders when a wrongful abduction or retention is found and that this provision must be read and understood in the context of the larger statutory scheme that includes s. 23: at para. 93. The majority noted, at para. 96, that where there is no evidence allowing the court to assume jurisdiction under s. 23, the court cannot use its interim powers under s. 40 to indefinitely postpone the return of a child. As with s. 23, the majority explained, at para. 97, that the best interests analysis under s. 40 is different at this stage:As with any decision affecting children, judges should consider the best interests of the child in exercising their s. 40 powers…. However, due to the interim nature of the powers, courts should not embark on a detailed analysis of the best interests factors set out in s. 24(3) of the CLRA[10] at this stage. [Emphasis added.] [78] The appellant, OCL and interveners argue that F. v. N. (SCC) can be distinguished from M.A.A. and the present case because it did not involve outstanding refugee applications. As such, they argue, F. v. N. (SCC) does not supersede M.A.A.’s instruction that a return order cannot be made in the face of outstanding refugee applications. To hold otherwise, they say, would ignore the principle of non-refoulement and Canada’s international obligations.
[79] I am not persuaded by these submissions. As earlier discussed in these reasons, F. v. N. (SCC) provides an analytical framework that is unaffected by the nature of the specific alleged serious harm under s. 23(b) of the CLRA. An outstanding refugee application and its potential extinction is but one form that serious harm may take. The F. v. N. (SCC) framework highlights the rebuttable presumption under s. 40 that once the court is satisfied the child has been wrongfully removed or retained, the child’s best interests generally align with a return to his or her home country. Finally, F. v. N. (SCC) expressly requires that ss. 23(b) and 40 be considered together and in the context of the statutory framework and purposes of the CLRA.
(d) A.M.R.I.
[80] Importantly, F. v. N. (SCC)’s analytical framework and interpretation of ss. 23(b) and 40 are consistent with A.M.R.I. and the latter’s discussion of return orders and the application of non-refoulement principles in accordance with Canada’s international obligations, including the rebuttable presumption of serious harm upon return that arises from a positive refugee application determination. As earlier noted, the majority in F. v. N. (SCC) makes clear that s. 23 creates an exception to the rebuttable presumption that children’s best interests are served by a return to their habitual residence.
[81] This court’s decision in A.M.R.I. confirms that when issues of refugee and child protection law intersect, the principles of one will not oust the jurisdiction of the other. To ensure that the rights of the child under both regimes are protected, judicial discretion is fundamental to the best interests of the child analysis. A.M.R.I. reiterates a balancing of all relevant principles, with the best interests of the child standing as the paramount consideration.
[82] A.M.R.I. concerned the return of a child to Mexico, a signatory to the Hague Convention. The child came to Canada to visit her father. Once in Canada, the child commenced an application for refugee status based on allegations of abuse by her mother in Mexico. The child’s refugee application was determined, and she was granted refugee status. Nevertheless, the mother obtained a return order. The child’s father appealed the return order and challenged the constitutionality of s. 46 of the CLRA. Section 46 incorporates the Hague Convention into Ontario domestic law, including the mandatory return of children to their country of habitual residence subject to specific exceptions. The father argued that the court’s return powers under s. 46 infringed the principle of non-refoulement, codified by s. 115 of the IRPA.
[83] The goals of return orders under the Hague Convention are the same as those under s. 40 of the CLRA, namely, to protect children against the harmful effects of wrongful abduction; to deter parents from abducting children in the hope that they will be able to establish links in a new country that might ultimately award them custody; and to ensure the speedy adjudication of the merits in the forum of the children’s habitual residence: F. v. N. (SCC), at para. 95, citing Office of the Children’s Lawyer v. Balev, 2018 SCC 16, 1 S.C.R. 398, at paras. 25-27.
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[87] In A.M.R.I., the court grappled with the significance of an Immigration and Refugee Board (“IRB”) refugee determination on an application for return under the Hague Convention. It concluded, at para. 74, that “when a child has been recognized as a Convention refugee by the IRB, a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence” and that “[a] risk of ‘persecution’ in the immigration context clearly implicates the type of harm contemplated by art. 13(b) of the Hague Convention.”
[88] Article 13(b) of the Hague Convention provides that the requested state authority “is not bound to order the return of the child” if the person opposing the return application establishes that: “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” It is well established that “serious risk of harm” under s. 23(b) of the CLRA is less than “a grave risk” of harm under art. 13(b) of the Hague Convention: Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 58; Zafar, at para. 84.
[89] The court concluded, at paras. 77-78, that a refugee child’s right against refoulement is not infringed by the return powers under the CLRA because of the discretion afforded to state authorities to refuse a return order on specific grounds and the rebuttable presumption of a risk of serious harm upon the determination of refugee status.
[90] Even, as in A.M.R.I., where the child had been granted refugee status in Canada, the court reconciled the provisions of the CLRA and the principle of non-refoulement. This critically undermines the position advocated for by the appellant, OCL and interveners that the mere existence of a refugee application acts as an absolute bar to return. Instead, the court’s characterization of a determination of the child’s refugee status “as giving rise to a rebuttable presumption of a risk of harm” supports a nuanced approach that requires the consideration of all relevant principles.[11]
[91] As affirmed in F. v. N. (SCC), for both Hague and non-Hague Convention cases, the approach set out in A.M.R.I. maintains the balance necessary to protect refugee rights while also respecting the goals of s. 40 return orders. As A.M.R.I. further instructs, at para. 73: “[c]ourts must therefore be alert to any attempt to misuse the refugee protection scheme” by an abducting parent seeking “to gain tactical advantage in a looming or pending custody battle.”
(e) M.A.A.
[92] Through the lens of the applicable statutory context and governing principles, I now review M.A.A.
[93] As in the present case, M.A.A. involved a mother fleeing from an allegedly abusive relationship and seeking refugee status for herself and her children on that basis. The father disputed the allegations of domestic violence and sought the return of the children under s. 40 of the CLRA. The mother asked the court to assume jurisdiction under s. 23, relying on the allegations of abuse against the father as the basis for serious harm to the children. Importantly, the court in that case had a Voice of the Child Report from the oldest child, I., age 11 at the time of the appeal. The child described his father hitting him with a belt and threatening him with an iron. There was fresh evidence suggesting that the child was suffering from increased anxiety connected to the prospect of a return to his father’s care. The application judge rejected the evidence about the alleged abuse from the mother and the children as lacking credibility, finding that the children’s evidence of abuse was coached by the mother.
[94] This court accepted fresh evidence of I.’s heightened anxiety about being unsafe if returned to live with his father in Kuwait. The fresh evidence also included that the mother had been convicted in Kuwait of kidnapping the children and that the father had obtained two court orders in Kuwait: an order granting him custody of the children; and an “obedience order” obligating the mother to “enter into submission” to her husband and “obey her husband”: M.A.A., at para. 34.
[95] The mother’s appeal was allowed after this court found that serious harm had been made out under s. 23(b) and determined that the court should assume jurisdiction.
[96] The appellant, OCL and interveners in the present case rely heavily on various statements in the court’s reasons in M.A.A. In particular, they maintain that the following statement in para. 72 of the reasons is dispositive: “A return order must not be made under s. 40(3) in the face of a pending refugee claim.”
[97] I disagree. This statement should not be considered in isolation from the rest of the reasons and the factual underpinnings on which they rest. When the reasons are read as a whole, M.A.A. does not create a blanket prohibition against a return order in the face of outstanding refugee applications.
[98] To read M.A.A. in the way urged by the appellant, OCL and interveners would be inconsistent with the statutory provisions and the governing principles that I have just reviewed. M.A.A. does not serve to override the court’s jurisdiction to exercise its authority under the CLRA in the face of an outstanding refugee application. This would leave the court in the unintended position where it was powerless to provide the appropriate remedy and protect the best interests of children who are wrongfully abducted or retained. Critically, there is nothing in the CLRA or IRPA that mandates an automatic bar to return orders in the face of outstanding refugee claims. Rather, as F. v. N. (SCC) instructs, a court considering a return order must carry out a detailed analysis of all relevant factors.
[99] Moreover, it is clear, as demonstrated in para. 78 of the reasons, that M.A.A. allows for the exercise of the court’s discretion to the extent permitted under the CLRA:When a request is made for the court to exercise jurisdiction under s. 23 in the face of a pending refugee claim, but the court is not satisfied that the serious harm requirement has been met, the court may want to consider exercising its power under s. 40(2) to stay the proceedings until the refugee claim is determined. [Emphasis added.] [100] M.A.A. did not, however, require an engagement with this discretionary power under s. 40(2) because this court was satisfied that the serious harm requirement had been met and assumed jurisdiction over the dispute.
[101] The reasons in M.A.A. belie the suggestion that a refugee claim gives rise to a mandatory stay of the proceedings. Instead, when read as a whole, the reasons demonstrate that the court engaged in a balanced approach to the interplay between ss. 23(b) and 40 of the CLRA, consistent with the framework later prescribed by the Supreme Court in F. v. N. (SCC).
[102] I accordingly reject the submission made by the appellant, OCL and interveners in the present case that M.A.A. prohibits a return order under s. 40 in the face of a pending refugee claim.
(f) Conclusion
[103] The existence of a refugee claim does not automatically stay CLRA proceedings or oust the court’s discretion to make an order under s. 40. It is, however, a significant consideration. As stated in M.A.A., in the face of a pending refugee claim, “the court may want to consider exercising its power under s. 40(2) to stay the proceedings until the refugee claim is determined” (emphasis added).
[104] The court must weigh the goals of return orders pursuant to provincial legislation (or the Hague Convention, as the case may be), against federal and international obligations under refugee law, to exercise its discretion appropriately. Where, as here, an IRB decision can be expedited and obtained in short order, this will significantly affect the calculus as to whether a stay or return order should be made.
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[106] As I earlier explained, the IRB decision is not determinative of the analysis under ss. 23 and 40 of the CLRA. A positive determination creates a rebuttable presumption. Moreover, the IRB hearing is in camera and takes into account only the appellant’s evidence. As this court noted in A.M.R.I., at para. 73, as is customary in such hearings, the respondent “would have no notice of the IRB hearing and no opportunity to participate, including no opportunity to respond to the serious allegations of abuse made against him.” The IRB decision will nevertheless be a material consideration.
[107] The focus of this appeal is the scope of the required analysis under ss. 23 and 40 of the CLRA. Its particular context includes outstanding refugee applications and allegations of domestic violence that also form the basis for untried criminal charges against the respondent. The required analysis is multi-factored and fact-driven. The court must consider all relevant factors to exercise its powers and discretion under ss. 23 and 40. . 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] . Trop v. Trop [compliance with interim orders]
In Trop v. Trop (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion for a stay of an interlocutory order for an 'updated financial statement'.
Here the court makes an important point regarding attornment:[7] First, compliance with court orders in the face of an ongoing jurisdictional challenge is not treated as attornment: see: Yaiguaje v. Chevron Corporation, 2014 ONCA 40, 62 C.P.C. (7th) 368, at para. 11, leave to appeal dismissed, [2018] S.C.C.A. No. 255. A party must take a voluntary step to indicate attornment to the jurisdiction: Sakab Saudi Holding Company v. Al Jabri, 2021 ONCA 548, at para. 34.
[8] Second, if Mr. Trop’s delivery of an Answer and Financial Statement is not attornment to Ontario’s jurisdiction, it is difficult to imagine that his compliance with an order to produce an updated version of the financial statement that he has already produced will be separately treated as attornment. The delivery of pleadings and productions to facilitate the efficient exchange of information in which a party clearly raises the issue of jurisdiction has not generally, without more, been treated as attornment: see, for example: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, at para. 31; Van Damme v. Gelber, 2013 ONCA 388, 115 O.R. (3d) 470, at paras. 22, 23, leave to appeal refused, [2013] S.C.C.A. No. 342; Sakab Saudi Holding Company, at paras. 27-29.
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[10] Ms. Trop is entitled to financial disclosure notwithstanding the dispute over the court’s jurisdiction. As this court stated in Husid v. Daviau, 2012 ONCA 469, at para. 20, interim orders can be made without prejudice to a party’s right to dispute jurisdiction:[The moving party] argues that he could not make the motion in the court below because that would amount to attorning to the court’s jurisdiction, the very matter he contests by way of the main appeal. I do not accept this argument. There are a number of access orders in place already. I understand that they were made without prejudice to the father’s right to maintain that he did not attorn to the court’s jurisdiction. If the existing access orders could be made on that basis, I see no reason why the present motion could not also be made on the same basis.
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