Court of Appeal for Ontario
Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.
BETWEEN
Mamoona Zafar
Applicant (Appellant)
and
Rana Muhammad Azeem
Respondent (Respondent)
Michael J. Stangarone and Tiffany Guo, for the appellant
Bobbi Olsen, Nicolas Besner and Vlad Floca-Maxim, for the respondent
Heard: December 7, 2023
On appeal from the order of Justice Tami Waters of the Superior Court of Justice, dated September 21, 2023.
OVERVIEW
1The appellant (the “mother”) brought an application to have the parties’ three-year-old child, “A”, declared habitually resident in Ontario. She sought a parenting order granting her sole decision-making responsibility and primary residency for A.
2The respondent (the “father”) brought a motion on an urgent basis because he had already commenced an action for related relief that was set to be heard in Pakistan about six weeks later. He asked the Superior Court to dismiss the mother’s application and decline to exercise jurisdiction because the child was habitually resident in Lahore, Pakistan. He also asked for an order “dispensing with the [mother’s] consent to travel, with police enforcement, in the event that [the mother] has not returned the child to Lahore, Punjab, Pakistan, by 14 days following the granting of this Order”.
3In response to the motion, the mother asked the Ontario court to retain jurisdiction to determine any corollary relief proceedings and to deem a divorce the father obtained in Pakistan invalid.
4The father succeeded in all respects. The child was ordered returned to Pakistan within 14 days of the decision with or without the mother’s consent. On the basis of affidavit evidence alone, the motion judge concluded that the divorce obtained in Pakistan was valid, dismissed the mother’s application, found that A was habitually resident in Pakistan and ordered that she be returned to that jurisdiction. If the child was not returned, the mother’s consent to the child’s travel would be dispensed with.
5This is an appeal from that order (which has been stayed pending the appeal).
6The appeal rests on several alleged errors of law. The mother asserts:
(1) that the summary process relying only on affidavit evidence where there was significant conflict between the parties’ versions of events was procedurally unfair;
(2) that s. 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (“CLRA”), was improperly applied to determine the child’s habitual residence;
(3) that s. 23 of the CLRA was improperly applied when the motion judge determined that no serious harm will come to the child if she is returned to Pakistan; and
(4) that the divorce in Pakistan should not have been recognized based on the evidence provided.
7For the reasons that follow, I would allow the appeal.
background facts
8The parents were born in Pakistan. They were married on April 27, 2018, in Pakistan. At the time of their marriage, the father was residing in Mississauga as a permanent Canadian resident, while the mother had always been resident in Pakistan. Following the marriage, the mother remained in Pakistan and the father in Canada until the mother’s spousal sponsorship was approved. In November 2019, the mother came to reside in Canada for the first time and obtained permanent residency. She initially continued to work for her Pakistani employer remotely from Canada.
9A was born in September 2020, during the pandemic. The couple still lived in Mississauga when A was born, but they moved to Ottawa a few months later.
10A is a Canadian citizen, has a Canadian passport, has an Ontario birth certificate and has an Ontario Health Card.
11After A was born, the father worked full time as an engineer for Canada Post while the mother assumed the childrearing and homemaking responsibilities as a stay-at-home mother and wife.
12In November 2021, the mother took A to Pakistan for the first time to visit her parents. The father provided a signed travel consent, permitting the mother to take A to Pakistan for the visit. The mother and child travelled on a one-way ticket.
13The father did not travel with them to Pakistan.
14According to the mother, the plan was that she and the child would spend some time in Pakistan, after which the father would come and visit, and they would all travel back to Canada together. She expected him to arrive in Pakistan a couple of months later, sometime around January 2022. As it turned out, the mother and A stayed in Pakistan from November 11, 2021, to January 22, 2023. She obtained employment in Pakistan in 2022. She says that while it was always her intention to return to Canada, the father would not purchase the plane tickets for their return.
15On the father’s account, the mother returned to her family in Pakistan with the intent to remain there because she was unhappy and lonely in Canada.
16Eventually, on July 26, 2022, the mother says that her parents purchased return flights to Canada for her and her daughter. The flights would arrive in Canada on February 1, 2023.
17There is no dispute that from May 14, 2022, to July 14, 2022, the father travelled to Pakistan. The mother asserts that she did not even know he was in Pakistan at that time. While the father asserts that the mother had changed her contact information, she denies having done so.
18According to the father, the parties exchanged messages while she was in Pakistan that confirm that they intended to separate as of November 2022. The mother denies that these discussions took place.
19On November 18, 2022, the father filed for divorce in Pakistan while he was in Canada. The mother disputes that she received proper legal notice of the father’s application. On December 15, 2022, the divorce deed was registered in Pakistan. A divorce notice was sent out with notice of a December 31, 2022, meeting. The mother asserts that she never received this notice. The father disputes that assertion, stating that the mother refused to accept the notice. He asserts that the mother was informed about the divorce proceedings the entire time. On January 16, 2023, the father returned to Pakistan on what he says is a permanent basis.
20Three days after his arrival, the father attended court in Pakistan. The mother claims that she did not know that he had done that. The father’s lawyer in Pakistan is his father, who I will refer to as the “grandfather/lawyer”.
21In the first couple of days following the father’s return to Pakistan in January 2023, the mother says that she received a message from the father that he was there. She says that the father, his mother, and the grandfather/lawyer attended at the mother’s parents’ home where the mother and A were staying in Pakistan. The mother says that this was the first time the father had seen A since she and A had left for Pakistan in November 2021. She claims that there was no mention of a divorce at that meeting.
22The mother also claims that on January 19, 2023, the father and grandfather/lawyer came to her family home with a notice to appear in court and said that they had filed a proceeding in court against her, her father and her brother. The proceeding had to do with the “recovery and production” of A. She appeared in court the following day as required. She learned that the father had filed the proceeding improperly and that he had asked for an order that A’s passport be withheld to prevent her from leaving Pakistan. The father’s application in the custody proceedings in Pakistan claimed permanent full custody of A and alleged that the mother was negligent and unable to provide for A.
23Fearful of what would happen to A if she were to remain in Pakistan, the mother decided to return to Canada. The father obtained a non-removal order in respect of A, but the mother and A had already returned to Canada on January 22, 2023. The mother’s parents helped her to obtain the new plane tickets. When the mother and A arrived back in Ottawa, the mother says that she informed the father of their whereabouts. As the father had given up the lease on their apartment, the mother and A went to live in a shelter until she secured subsidized housing.
24In February 2023, after the father knew that the mother was back in Ottawa, he sent her a notice of proceedings in the court of reconciliation in Pakistan. The mother says that this was the first actual divorce notice that she received. She received a certificate of divorce issued on March 15, 2023. The mother takes issue with the divorce, claiming that it is invalid for lack of proper notice and therefore should not be recognized in Canada. Various court dates had been set in Pakistan, and the divorce was granted on default.
25On April 14, 2023, the father petitioned that the mother be held in contempt for taking the child out of Pakistan. At that point, the mother responded to the father’s custody proceedings in Pakistan, claiming that Canada was the proper jurisdiction to determine custody matters. The Pakistan court denied the petition, finding that the child’s place of permanent residence had yet to be determined, and determining that it was not appropriate to order the return of the child to Pakistan.
26In the meantime, on March 21, 2023, the mother started an application here asking that Ontario assume jurisdiction and make a parenting order granting her sole decision-making responsibility and primary residency for A. She claims that it was always her intention to live in and raise A in Canada. On her account, the father was the cause of her extended stay in Pakistan since he withheld money to pay for the return flight to Canada, despite her having asked to return in early February 2022.
27On July 25, 2023, the father filed an urgent motion seeking declaratory relief from the Superior Court in Ottawa. He asserted urgency based on the upcoming court hearing in Pakistan six weeks later, on September 7, 2023, and asked that the Ontario court decline jurisdiction and order that the child be returned to Pakistan without the mother’s consent.
28The father’s motion was heard on August 17, 2023, and the matter was deemed urgent. The hearing was scheduled for early September in order to potentially decide jurisdiction in advance of the September 7, 2023, hearing date in Pakistan. The father’s motion was heard in Ottawa on September 6, 2023.
the decision under appeal
29An oral ruling was given on September 21, 2023, granting the father all the relief he sought, dismissing the mother’s application, and ordering the return of the child to Pakistan.
30The application proceeded strictly based on affidavit evidence.
31After noting in her reasons both that the motion “certainly required evidence with respect to the legal process in Pakistan” and that “the affidavits are problematic in that the lawyer who swore the affidavit is also the paternal grandfather of the child in this case”, the motion judge concluded that the evidence on the divorce issued in Pakistan was credible and that the divorce should be recognized.
32The motion judge also determined that the child was habitually resident in Pakistan. This was because she had lived there with the mother for 14 months with the consent of both parties and was “fully immersed in Pakistan life”. The application judge also rejected the argument that A would be at risk of serious harm if she returned to Pakistan. While the mother alleged that she had been the subject of domestic violence at the hands of the father, the motion judge noted that this did not mean that the child would suffer serious harm if returned. She concluded that there was “no evidence of [A] facing serious harm after living in Pakistan for approximately 14 months.”
33The motion judge then ordered the return of A to Pakistan within 14 days.
34On November 1, 2023, the motion judge’s order returning A to Pakistan was stayed pending this appeal on consent of the parties. The hearing of the appeal was then expedited.
analysis
35In my view, all of the issues raised by the mother in this appeal can be grouped under three categories: (1) denials of procedural fairness and natural justice and related issues in ordering A’s return to Pakistan, (2) the mother’s fresh evidence application, and (3) the recognition of the validity of the foreign divorce.
36I will address the issues in that order. In brief, I conclude that the motion judge denied the mother procedural fairness by making a summary determination of A’s habitual residence and by concluding that there was no risk of serious harm to A, without providing a proper opportunity to develop the record and test the evidence by cross-examination or by hearing viva voce testimony. The motion judge also erred by ultimately failing to consider whether returning A to Pakistan was in her best interests. The bulk of the following analysis will focus on these issues.
37Given my conclusions on the first issue, it is not necessary to consider whether to admit the mother’s fresh evidence. On the last issue, it is my view that the motion judge should not have decided whether the foreign divorce was valid because that issue was also infected by procedural unfairness.
(1) Procedural Fairness and Natural Justice
(a) Overview
38The appellant maintains that she was denied procedural fairness in the rush to judgment in this case. Relatedly, she claims that the motion judge erred in law by failing to properly consider the two fundamental questions that had to be determined: whether the child is a habitual resident of Pakistan or Ontario, and whether, if returned to Pakistan, the child would be at risk of serious harm.
39The following reasons address why I agree with the appellant on each of these points. I also find that the motion judge erred by failing to consider whether ordering A’s return to Pakistan was in her best interests. Before addressing the points in the order set out in this section, I will first address the methodological approach to applications like this one.
(b) The Methodological Framework
40As with all allegations involving international child abduction, the first step is to determine whether the dispute involves a country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“the Hague Convention” or the “Convention”). All parties to the Hague Convention share in the view that “the interests of children are of paramount importance in matters relating to their custody”: Hague Convention, Preamble. See also Geliedan v. Rawdah, 2020 ONCA 254, 446 D.L.R. (4th) 440, at para. 37. When dealing with signatories to the Hague Convention, we take comfort from the fact that they, like Canada, are committed to making decisions based upon the best interests of children.
41Canada does not recognize Pakistan as a signatory to the Hague Convention. While Pakistan acceded to the Convention on March 1, 2017, Canada has not acknowledged its accession. This fact is agreed upon by both parties. It means that the terms of the Convention do not apply. This has practical implications for this case.
42First, while non-Hague Convention cases must be dealt with “promptly” as required by rule 37.2(3) of the Family Law Rules, O. Reg. 114/99, they do not have to be disposed of within the six-week timeline required by both the Family Law Rules and the Hague Convention. Second, since the provisions of the CLRA, rather than the terms of the Convention, apply, the threshold for engaging the serious harm exception is less stringent – it requires only the risk that the return would cause “serious harm” to a child rather than an analysis of whether returning them would place them in “an intolerable situation”: see Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at paras. 51-61; Geliedan, at para. 38. Third, while the court under the Hague Convention is required to order the return of the child to the habitual residence following a determination of wrongful removal, under s. 40 of the CLRA the decision to order the return of the child to their habitual residence is discretionary: Geliedan, at para. 69.
43For cases not covered by the Convention, the CLRA provides a complete code.
44Both the father’s urgent motion and the mother’s application required the court to determine where A was habitually resident. For the father’s motion, habitual residence was key to the question of whether Ontario should assume or decline jurisdiction. To determine the mother’s application requesting parenting orders from the court, the court was first required to assess if it had the jurisdiction to make such orders.
(i) Section 22 of the CLRA: Jurisdiction
45Section 22 of the CLRA grants an Ontario court jurisdiction over children who are either habitually resident in Ontario or those who are not, but certain criteria are met:
22(1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario. [Emphasis added.]
46In this way, the CLRA makes the concept of “habitual residence” central to jurisdiction.
47Habitual residence is defined in s. 22(2) as follows:
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
With a person other than a parent on a permanent basis for a significant period of time. [Emphasis added.]
48In this case, the mother asserted that A was last living with both parents in Ontario, satisfying s. 22(2)1. The father, on the other hand, asserted that the parents had been living separate and apart and that A was last living with the mother in Pakistan with his consent, satisfying s. 22(2)2.
(ii) Section 23 of the CLRA: Exception for Serious Harm
49Even where s. 22 does not apply, a court may still exercise its jurisdiction over a child in circumstances involving serious harm pursuant to s. 23 of the CLRA:
23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(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.]
50A is, and was at the time of the motion, physically present in Ontario. Therefore, even if A were not found to be habitually resident in Ontario, the court could also exercise jurisdiction in this case if it were satisfied that A would, on a balance of probabilities, suffer serious harm if removed from Ontario.
(iii) Section 40 of the CLRA: Discretion to Return a Child
51Pursuant to s. 40 of the CLRA, a child will be returned to another country only in certain delineated circumstances:
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
(b) that may not exercise jurisdiction under section 22 or that has declined jurisdiction under section 25 or 42,
may do any one or more of the following:
Make such interim parenting order or contact order as the court considers is in the best interests of the child.
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.
- 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.]
52Section 40 therefore gives the court the discretionary power to order the return of a child, although it is not mandatory.
53In this case, the father requested an order dispensing with the mother’s consent to travel, with police enforcement, in the event that the mother had not returned the child to Lahore, Pakistan within 14 days.
(c) The Mother Was Denied Procedural Fairness and Natural Justice
54The mother raises as a ground of appeal that the judge below erred in applying a summary determination process.
55This ground of appeal directly relates to the asserted errors in relation to the analysis of habitual residence, serious harm, as well as the appropriate order under s. 40. The mother submits that, given the conflicting affidavit evidence on all points, it was an error for the motion judge to decide these issues without proper time afforded to prepare and develop the record, including by cross-examination on affidavits and/or viva voce testimony.
56I agree.
57As matters unfolded, there were two aspects to the summary determination process: the first was the matter heard before Doyle J. on August 17, 2023, determining that the matter was “urgent” and scheduling the hearing to proceed in early September, prior to the previously scheduled Pakistan proceeding date of September 7, 2023.
58The mother opposed the request to expedite the hearing, asserting before the scheduling judge that there was no urgency to the matter. The scheduling judge accepted the father’s assertions of urgency, both on the basis that the Pakistan hearing had already been scheduled and that the matter was an alleged wrongful removal.
59It was not an error to schedule an expedited hearing under the circumstances. In another case, jurisdiction could well have been determined summarily on affidavit evidence alone, or with cross-examinations in or out of court.
60However, in this case there were no cross-examinations, and once the matter was before the motion judge, it became clear that the affidavit evidence conflicted in key respects that required resolution, especially as it related to the questions of habitual residence and serious harm. While it is fundamental that all alleged child abduction cases be dealt with efficiently and expeditiously, it is equally fundamental that there be a careful assessment of the factual circumstances informing the key questions involved.
61Canada cannot become a country of choice for child abductors. At the same time, we must ensure that procedural fairness and natural justice are not sacrificed for efficiency and expediency. This is particularly true when dealing with jurisdictions that do not share obligations under the Hague Convention. In my view, and particularly in light of the fact that Canada has not recognized Pakistan’s accession under the Hague Convention, more was needed in this case to resolve the factual issues that called for resolution before coming to conclusions on the key issues in dispute.
62As will become clear in the discussion below, the mother was denied procedural fairness and natural justice in the motion judge’s determination of A’s habitual residence, her conclusions of the risk of serious harm to A, and her decision to order the return of A to Pakistan without first considering whether making this further order was in A’s best interests.
(i) Habitual Residence
63The application judge correctly identified “habitual residence” as the “crux” of the materials and submissions. This is because, as set out above, deciding a child’s habitual residence is the key to determining jurisdiction under the CLRA.
64The mother and father disagreed on the child’s habitual residence.
65On the father’s account, the parents were last living separate and apart with A living with her mother in Pakistan with his consent. His affidavit evidence was that the mother had been extremely unhappy and lonely in Canada and that they had agreed that she would return permanently to Pakistan where he would join her when he could. According to the father, the parties decided to separate in November 2022 when the mother was living permanently with the child in Pakistan.
66On the mother’s account, the trip to Pakistan was always intended to be a temporary visit with her parents. She says that she expected the visit to last only a couple of months. She also says that the fact that she remained in Pakistan for as long as she did was only because the father would not pay for her return. The mother’s account is substantiated by text messages as far back as February 2022 that suggest the mother wanted A’s vaccinations done in Canada. She asked, “When are you calling us home?” and “When are u sending our tickets?”
67The father’s and mother’s accounts conflict in most respects. If the father’s account is believed, A’s habitual residence is Pakistan. If the mother’s account is believed, it is in Ontario.
68Based solely on the conflicting affidavit evidence, and without making any credibility findings, the motion judge concluded that A was habitually resident in Pakistan, declining jurisdiction under s. 22.
69In light of this conflicting evidence, the motion judge was required to allow the parties to amplify the evidentiary record to resolve the conflict. On the affidavit evidence alone, the motion judge was in no position to assess credibility and to accurately choose one account – the father’s – over the other.
70In arriving at her decision, the motion judge focussed only on the return trip to Ontario. This, she said, was not on consent and was a wrongful removal: “…[A’s] mother is here as of January, but quite frankly self help does not make a real or substantial connection.”
71On this basis, as well as the fact that A’s Canadian citizenship and Ontario Health Card could not themselves determine habitual residence, the motion judge summarily concluded that Pakistan was A’s habitual residence.
72This analysis overlooked the fact that the child was in Canada for about the same length of time as she was in Pakistan. More importantly, it overlooked the conflict between the parties as to the intention behind the trip to Pakistan in the first place – whether it was a move or a visit – and the reason for the prolonged stay.
73For a child under three years old, as A was at the time of the motion, parental intention remains central to determining habitual residence. If the reason for the mother’s and A’s extended stay in Pakistan was, as the mother claimed, the father’s unwillingness to facilitate her return to Canada as originally planned, the mother’s and A’s return to Canada in January is cast in an entirely different light: it is a return home that was always in the plan and not “self help”.
74While the decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, is a case involving Hague Convention signatories, the legal discussion around how to determine habitual residence is equally applicable in the non-Convention context. This discussion demonstrates that determining this question is not simply about asking and answering where the child last lived during what period of time. While that question will undoubtedly be important, so too will numerous other factors or, as McLachlin C.J. described at paras. 43-45, “all relevant links and circumstances”, including parental intention:
…The judge considers all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B.
Considerations include “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality . . . No single factor dominates the analysis; rather, the application judge should consider the entirety of the circumstances . . . Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of” …
The circumstances of the parents, including their intentions, may be important, particularly in the case of infants or young children. . . The Court of Justice of the European Union stated in O.L. that parental intention “can also be taken into account, where that intention is manifested by certain tangible steps such as the purchase or lease of a residence”: para. 46. It “cannot as a general rule by itself be crucial to the determination of the habitual residence of a child . . . but constitutes an ‘indicator’ capable of complementing a body of other consistent evidence”: para. 47. The role of parental intention in the determination of habitual residence “depends on the circumstances specific to each individual case”: para. 48. [Citations omitted.]
75Despite wholly conflicting accounts from the parents, one thing is not in dispute: A’s entire young life has revolved around her mother as her primary caregiver. A is a three-year-old child who has not yet developed any real connection to school, to community or to friends. While those are things that will undoubtedly develop, right now, her world is her connection to her mother as her primary caregiver since her birth.
76In this context, determining parental intent was key to determining habitual residence and the motion judge did not have the evidence to do so. Once parental intention is identified as relevant, it becomes apparent that habitual residence in this case could not be determined without testing the mother’s evidence. If accepted, the mother’s evidence would mean that A’s habitual residence is in fact Ontario and not Pakistan.
(ii) Serious Risk of Harm Under Section 23 of the CLRA
77Even if the motion judge was right to determine that Pakistan was A’s habitual residence, the allegations of serious harm to the mother were sufficient here 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.
78When 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. This is unless, of course, there are exceptional circumstances that justify Ontario taking jurisdiction: F. v. N., 2022 SCC 51, at para. 63. Therefore, at the stage of deciding jurisdiction, the question is not focussed on a broad determination of the child’s best interests. Rather, it is a question of whether the court should exercise jurisdiction on exceptional grounds. One of those grounds is whether the court is satisfied on a balance of probabilities that there is a risk of serious harm should the child be removed from Ontario, as governed by s. 23 of the CLRA. As Kasirer J. put it in F. v. N., 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.”
79The burden of proof is on the person alleging serious harm to convince the court. The serious harm threshold is made out only where the harm itself would be serious in nature. Therefore, it is not enough to conclude that the return would adversely impact the child. Rather, this analysis is about determining the likelihood and severity of that harm: Ojeikere, at para. 62.
80As mentioned earlier, while the Hague Convention uses terminology involving a grave risk of harm involving an “intolerable situation” in Article 13(1)(b), the s. 23 “serious harm” standard is less exacting: Ojeikere, at para. 58. This is because the signatories to the Hague Convention are able to rely upon their reciprocal recognition that ultimate custody decisions will rest on the best interests of the child: Ojeikere, at para. 60.
81The mother alleges that A will suffer serious harm if returned to Pakistan. This allegation is based upon affidavit evidence that the mother has been the victim of physical and emotional violence from the father. The mother alleges that her relationship with the father was “characterized by [the father’s] physical, sexual, verbal, legal, and financial abuse”. The father denies all allegations. As examples, she states that the father had physically assaulted her while she was pregnant, uttered death threats, refused to provide financial support for her and A, refused to allow her and A to return to Ottawa, refused to provide A with the necessities of life (such as food, diapers and clothing) and attempted to take custody of A in Pakistan.
82These examples include allegations of physical assaults, both during and after the mother’s pregnancy, and in A’s presence, death threats toward the mother and threats to take the child. The evidence includes photographs of a bruise on the mother’s arm taken at a time she alleges the father grabbed her by the arm and dragged her while she was pregnant.
83Despite this evidence, the motion judge rejected the argument that the mother’s allegations of abuse could amount to serious harm to A, and therefore declined to exercise jurisdiction pursuant to s. 23. The motion judge also said that the mother “did not provide any basis that serious harm would come to [A] if she returned to Pakistan” and that she had, therefore, failed to meet her onus on serious harm and that her evidence was “wholly insufficient”:
The test is with respect to [A] facing serious harm. The mother placed whole emphasis on her well-being and not necessarily the analysis of the child facing serious harm. There was no evidence of the child facing serious harm after living in Pakistan for approximately 14 months. There is no evidence of psychological harm or physical harm while [A] was in Pakistan.
84The motion judge erred in concluding that violence towards the mother was irrelevant to the risk of serious harm to A. Physical and psychological violence toward a parent can create serious harm to a child. Even in assessing harm under Article 13(b) of the Hague Convention, a more stringent standard, this court has held that risk of harm to the primary caregiver constitutes a risk of harm to the child. In Pollastro v. Pollastro (1999), 1999 CanLII 3702 (ON CA), 43 O.R. (3d) 485 (C.A.), the Court of Appeal for Ontario permitted the child to remain in Ontario instead of ordering her return to California due to a risk of serious harm. This conclusion was based partially on the finding that the domestic violence perpetrated against the mother had an impact on the child.
85As of March 1, 2021, a new section has been added to both the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the CLRA defining “family violence” and requiring it to be considered under the best interests of the child analysis. Notably, family violence must be considered as part of this analysis under both ss. 16(3) and (4) of the Divorce Act and ss. 24(3) and (4) of the CLRA.
86The [Divorce Act]1 defines family violence in s. 2(1) as:
any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessities of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property[.]
87The father submits that this court should not be concerned with the mother’s allegations of domestic violence, largely owing to the fact that the couple will not be living together even if the mother and A return to Pakistan.
88This suggestion is contrary to the new requirement under the CLRA that the court is required to take family violence into account in assessing a child’s best interests.
89In my view, a proper evidentiary hearing was required to evaluate the serious allegations made by the mother in this case, and to properly consider the effect of any proven domestic violence against the mother on A’s best interests going forward.
(iii) Return Order Under Section 40 of the CLRA
90Even if A’s habitual residence was correctly determined to be Pakistan and the court was not persuaded to assume jurisdiction because of a serious risk of harm to her if she were returned to Pakistan, the court was still required to consider what further order was in A’s best interests.
91Unlike in the circumstances of a Hague Convention case, under s. 40, the court was not required to order A’s return to Pakistan: Geliedan, at para. 69. For instance, A could remain in Ontario while the parenting proceedings went ahead in Pakistan.
92There was therefore a failure to consider the options based solely on A’s best interests. This is a third area where further consideration was needed based on a fully developed evidentiary record.
(2) Fresh Evidence
93In light of my conclusions above, there is no need to consider whether to accept the mother’s fresh evidence on the appeal.
(3) Foreign Divorce
94The mother also appeals from the decision to recognize the validity of the foreign divorce. This issue was only advanced in the parties’ written submissions, and so I will be correspondingly brief.
95The recognition of foreign divorces is governed by s. 22 of the Divorce Act. The mother submits that s. 22(1) does not apply because she was not habitually resident in Pakistan for at least one year immediately preceding the commencement of the proceedings for the divorce. She was habitually resident in Ontario, and only temporarily residing in Pakistan. As such, the Pakistan Divorce could only be recognized under s. 22(3), which permits a Court to recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law.
96The mother further submits that the divorce in this case was given without sufficient notice, was a “bare talaq” divorce made unilaterally by the father (which he denies), and that, given the consequential loss of entitlement to claim spousal support in Ontario following recognition of a foreign divorce, it should not be recognized for reasons of public policy.
97The motion judge begins her analysis by stating that evidence about the legal process in Pakistan was “certainly required”. At the same time, after noting that the affidavits on this issue were “problematic in that the lawyer who swore the affidavit is also the paternal grandfather of the child in this case”, she nonetheless accepted that evidence.
98Given that evidence of the legal process in Pakistan was required and that only “problematic” evidence was available, the motion judge should not have decided the issue without providing the mother with a proper opportunity to develop the record on that issue.
99I also disagree with the motion judge’s conclusion that “[t]here is no doubt that the mother was habitually resident in Pakistan for one year preceding the commencement of the divorce proceedings.” This statement does not reconcile the mother’s version of events, in which she says that the father prevented the mother’s return from what was intended to be a short visit to Pakistan. Like the other issues, given the contradictory evidence on this point, the motion judge was required to provide some reason for rejecting the mother’s account.
100Given these conclusions, it is not necessary to address the mother’s submissions about the potential public policy bases for not recognizing the divorce.
CONCLUSION
101I would allow the appeal, set aside the order under appeal and remit the matter to the Superior Court of Justice to conduct an evidentiary hearing focussed upon the child’s habitual residence and the issue of serious harm. If, based upon that evidence, the court determines that it should not exercise jurisdiction for whatever reason, it must consider whether it is in the best interests of A to remain in Ontario while the matter proceeds in Pakistan or exercise its discretion under s. 40 of the CLRA to order the return of the child to Pakistan.
102As well, I would set aside the order recognizing the foreign divorce and remit the matter for a further hearing of this issue consistent with these reasons.
103Costs of the appeal are payable by the respondent to the appellant in the amount of $10,000 all inclusive.
Released: “January 11, 2024 JMF”
“Fairburn A.C.J.O.”
“I agree. K. van Rensburg J.A.”
“I agree. B. Zarnett J.A.”
Footnotes
- The definition in the CLRA is virtually identical to the Divorce Act definition, but it is split over two provisions: see CLRA, ss. 18(1) and 18(2),
