A wrongfully retained child was ordered returned to her country of origin after Canada granted her refugee status.
The Court of Appeal for Ontario allowed the appeal, finding that the application judge erred in failing to apply the rebuttable presumption against the return of a refugee child and in dismissing the child's objection to return.
The court held that when a child has been recognized as a Convention refugee by the Immigration and Refugee Board, a rebuttable presumption arises that there is a risk of persecution on return.
The application judge improperly questioned the refugee determination process and reweighed evidence without oral testimony or cross-examination.
Additionally, the child's clear and repeated objection to return, based on fear of violence by the father, was not given proper weight.
The matter was remitted to the Superior Court for determination of parenting and decision-making authority under section 23 of the Children's Law Reform Act.
