Nicole Anne Burrows

This is a costs decision following a successful appeal by the mother in a family law matter involving the Hague Convention and refugee status.

The mother's appeal overturned the application judge's decision to return the child to the country of origin after Canada granted the child refugee status.

The Court of Appeal awarded costs to the mother as the wholly successful party, fixing costs at $50,000 for the application and $30,000 for the appeal, totalling $80,000, while reversing the application judge's award of $75,000 to the father.

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.

The Court of Appeal for Ontario considered a motion for restrictions on access to the court file and decision in a Hague Convention child abduction appeal, where the child had been granted refugee status.

The appellant sought anonymization, a publication ban, and sealing of documents created under the Immigration and Refugee Protection Act.

The court reviewed the open court principle, the best interests of the child, and the test for discretionary limits on openness from Sherman Estate v. Donovan.

The court ordered anonymization, a publication ban, and sealing of IRPA documents, but declined to seal the entire file, balancing the child’s privacy and safety against the public interest in court openness.