Court of Appeal for Ontario

Date: 2025-04-16
Docket: COA-24-CV-1001

Coram: Roberts, Miller and Pomerance JJ.A.

Between:
A.A., Applicant (Respondent)
and
Z.S.M., Respondent (Appellant)

Counsel:

• Maneesha Mehra, Archana Medhekar and Yasmine Abuzgaya, for the appellant
• Michael J. Stangarone, Tiffany Guo and Syed Kabir, for the respondent
• Sheena Scott and Caterina E. Tempesta, for The Office of the Children’s Lawyer
• Maureen Silcoff and Adam B. Sadinsky, for the intervener, Canadian Association of Refugee Lawyers
• Cheryl Robinson and Laura Best, for the intervener, Centre for Refugee Children
• Shelly Kalra and Neha Chugh, for the intervener, South Asian Coalition

Heard: January 9, 2025

On appeal from the order of Justice Mohan Sharma of the Superior Court of Justice, dated August 22, 2024.

L.B. Roberts J.A.:

A. Overview

[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 of the Children’s Law Reform Act (the “CLRA”), while the child and mother’s refugee applications under the Immigration and Refugee Protection Act (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 on the ground that the child would face “serious harm” if ordered returned to Bangladesh.

[2] The parties met and married in Bangladesh. The only child of their marriage was born in Bangladesh on August 30, 2023. She is now almost 19 months old. The parties came to Canada on vacation on May 2, 2024, when the child was nine months old. During their stay here, the parties separated following an argument. The appellant claims that during this argument, the respondent, the child’s father, was physically violent towards her. The appellant reported her allegations of domestic violence to the police on June 5, 2024, and the respondent was charged with assault and other offences. Those charges are still pending.

[3] The appellant then applied for refugee status on behalf of herself and the child without the respondent’s consent. The applications are based on allegations of domestic violence at the hands of the respondent, which the appellant asserts occurred throughout their marriage and culminated in the incidents in Canada leading to the criminal charges against the respondent. On appeal, there was fresh evidence that the refugee applications were expedited and scheduled to be heard at the end of January 2025.

[4] The respondent brought a motion under s. 40 of the CLRA for the return of the child to Bangladesh, a country that is not a signatory to the Hague Convention. The appellant opposed the motion and asked the court to assume jurisdiction over the dispute under s. 22(1)(b) of the CLRA, because it was alleged the child had a real and substantial connection to Ontario, and under s. 23(b) of the CLRA, because she argued that if returned to Bangladesh, the child would, on the balance of probabilities, suffer serious harm.

[5] Following a hearing where the appellant testified viva voce and the respondent provided affidavit evidence, the motion judge ordered the return of the child to Bangladesh. He declined to determine the appellant’s allegations of domestic violence, indicating that she was to raise them before the court in Bangladesh that had jurisdiction over the child. The motion judge held that there was no evidence of serious harm to the child because there was no allegation that the respondent had ever directly harmed the child, and the appellant’s fear “of what a Court in Bangladesh might order with respect to parenting is not sufficient to satisfy the criteria of ‘serious harm’.”

[6] The appellant raises several grounds of appeal. The alleged errors of procedural unfairness and treatment of the evidence are particular to this dispute. The appeal turns, however, on an issue that transcends the dispute between these two parties: namely, the proper interpretation and application of this court’s decision in M.A.A. v. D.E.M.E., 2020 ONCA 486. In M.A.A., this court addressed competing applications under ss. 23 and 40 of the CLRA, involving claims of serious harm based on allegations of domestic violence that grounded pending refugee applications. In that case, a Voice of the Child Report from the Office of the Children’s Lawyer (“OCL”) featured the eldest child’s description of his father as “mean, angry and threatening”. The child, 11 years old at the time of the appeal, described “being hit with a belt and threatened with a hot iron”: M.A.A., at para. 13. This court overturned the application judge’s decision and assumed jurisdiction under s. 23(b) of the CLRA, finding serious harm if the children were returned to their home country, and declined to order the return of the children under s. 40 of the CLRA in the face of the children’s outstanding refugee applications.

[7] The appellant, OCL, and interveners assert that M.A.A. draws a hard line in the sand: a refugee application effectively stays any proceeding under the CLRA to return a child to his or her home country until the refugee application is finally determined and all appeal and judicial review routes are exhausted.

[8] The respondent interprets M.A.A. differently. While the existence of a refugee application is a consideration on a motion to return a child under s. 40 of the CLRA, it is only one of many factors that the court must weigh in exercising its discretion to order the return of a child. It does not, however, serve to automatically stay a return motion or otherwise interfere with the court’s discretion under the CLRA.

[9] In my view, the proper interpretation of M.A.A. directs a middle ground between these positions. A child’s outstanding refugee claim is an important consideration in determining whether to order the return of a child to her habitual residence. The failure to consider it as part of the analysis under ss. 23 and 40 of the CLRA constitutes material error. While an important factor in the analysis, the existence of an outstanding refugee claim does not, however, automatically stay a motion to return a child or otherwise fetter the court’s discretion. This interpretation is consistent with the structure and purposes of the CLRA as they have been construed by this court and the Supreme Court of Canada.

[10] Moreover, as this court instructs in Zafar v. Azeem, 2024 ONCA 15, para 89, in the face of contested allegations of domestic violence, an evidentiary hearing may be required to address the question of serious harm as a basis for assuming jurisdiction under s. 23. This instruction aligns with the requirement under the CLRA that the court take family violence into account in assessing a child’s best interests: Zafar, at para. 88. The failure to do so may amount to material error.

[11] Here, the motion judge did not engage with M.A.A. or the relevance of the refugee applications brought by the appellant for herself and the child. (I note that no one appears to have relied on M.A.A. or brought it to the motion judge’s attention.) He also did not address the conflicting evidence of domestic violence and other issues to assess whether they could give rise to serious harm to the child if she were returned to Bangladesh. These omissions constitute material error.

[12] The existing record does not permit this court to undertake the analysis afresh. As a result, I would set aside the motion judge’s decision and remit the motion to the Superior Court for a new hearing.

B. Preliminary Issues

(i) Motions to Admit Fresh Evidence

[13] The parties and the OCL ask this court to admit fresh evidence.

[14] The parties’ affidavit evidence details their highly divergent positions on the appellant’s allegations of domestic violence. The appellant’s allegations of physical and emotional abuse are vehemently denied by the respondent.

[15] Similarly, the OCL’s affidavit evidence from Mary Polgar, a clinician at the OCL who spoke to the parties, focuses on: i) the appellant’s allegations of domestic violence and the respondent’s denial of those allegations; and ii) conversations with the appellant’s uncle and the respondent’s cousin (who did not testify at trial or provide affidavits as fresh evidence) about their observations of the domestic relations between the appellant and respondent. Ms. Polgar’s affidavit also recounts her observations of the appellant’s interactions with the child and provides updates on the child’s accommodations here and in Bangladesh. Finally, her affidavit includes information on the status of the criminal proceedings against the respondent in Ontario and the family law proceedings commenced by the respondent in Bangladesh.

[16] The OCL also seeks to admit as fresh evidence the affidavit of Michael Stephen Casasola, representing the United National High Commissioner for Refugees (“UNHCR”), to which are attached the UNHCR’s factum filed in M.A.A. and the UNHCR’s 2024 Mid-Year Trends Report.

[17] The test for the admission of fresh evidence on appeal is uncontroversial: the well-established criteria from R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, must be satisfied:

(i) the evidence could not have been adduced at trial;
(ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue;
(iii) the evidence must be reasonably capable of belief; and
(iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[18] Adherence to the Palmer criteria for the admission of fresh evidence on appeal, particularly in cases involving children, was reiterated by the Supreme Court of Canada in its recent decision in Barendregt v. Grebliunas, 2022 SCC 22, para 4:

In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critical in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.

[19] Fresh evidence will not meet the test for admission where it essentially constitutes a whole new record, full of lengthy, contextualized narrative that could have been put before the court below, or expands on or repeats issues explored at the proceeding below, or when it consists of a party’s allegations of what has transpired since the proceeding that are unrelated to the issue at hand, such as disputed allegations that this court is unable to resolve: Bors v. Bors, 2021 ONCA 513, para 59; A.C.V.P. v. A.M.P., 2022 ONCA 283, para 15; Goldman v. Kudelya, 2017 ONCA 300, para 24.

[20] The fresh evidence of the parties and the OCL on the allegations of domestic violence fails to meet the test under Palmer. This evidence repeats in more detail what was before the motion judge. The parties’ positions are also diametrically opposed. Given that this court cannot assess the credibility and reliability of the parties, it is not possible to reconcile their respective accounts on a paper record.

[21] The admission of Mr. Casasola’s affidavit is also denied. His evidence is not qualified as expert evidence, nor does it provide relevant information for the appeal.

[22] The evidence that was not and could not have been placed before the motion judge is the evidence from the parties and the OCL about the child’s present status, her interactions with her parents, her present supports in Canada and Bangladesh, and the status of the criminal and family law proceedings. There is also some limited information that the parties told Ms. Polgar that does not appear to be in dispute and assists in filling out the narrative.

[23] Accordingly, I would admit portions of the parties’ respective affidavits and of Ms. Polgar’s affidavit as fresh evidence on the appeal with the following caveats. Only paragraph 201 of the appellant’s affidavit; paragraphs 180, 188, and 222 of the respondent’s affidavit in response to the appellant’s affidavit; and paragraphs 12, 29-38, 93-103, 106-109, and 110-119 of Ms. Polgar’s affidavit will be admitted as fresh evidence.

(ii) Scope of the South Asian Coalition’s Submissions

[24] At the appeal hearing, the respondent objected to the South Asian Coalition’s materials on the basis that they exceeded the scope of intervener submissions by effectively supplementing the record and causing him prejudice. In response, the South Asian Coalition indicated that it would be prepared to refer only to the caselaw referenced in their written submissions and the appellant’s evidence on the motion and in her fresh evidence affidavit. The South Asian Coalition had initially argued for the admission of this evidence on the basis that it is “cultural evidence” about the dynamics of South Asian families, is necessary for proper adjudication, and would not otherwise be before the court. It should be noted that cultural evidence is opinion evidence and is subject to the same rules of admissibility that govern all opinion evidence.

[25] The test for intervention is ultimately fact-specific and discretionary. This court will consider the nature of the case, the issues which arise, and the likelihood that the applicant will make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties: Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd., para 10. An intervener is entitled to raise new legal arguments provided they do not require additional evidence and are not unfair to a party: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69. However, an intervener on an appeal takes the record as it is, subject to the right to seek leave to adduce new evidence: Halton Community Credit Union Ltd. v. ICL Computers Ltd. (1985), 1 C.P.C. (2d) 252 (Ont. C.A.). Finally, the fact that an intervener supports one of the parties’ positions is no bar to intervention provided the intervener offers more than mere repetition of the position advanced by a party: Jones v. Tsige.

[26] The South Asian Coalition was granted intervener status to provide submissions on the law, not to supplement the record. Consequently, any commentary on the evidence before the court goes beyond the parameters of the intervener order. Moreover, the South Asian Coalition filed with the court academic articles containing opinion evidence. Such opinion evidence is presumptively inadmissible.

[27] As a result, only the case law submitted by the South Asian Coalition was admissible and we ordered that this was all they could refer to in oral submissions.

C. Issues on Appeal

[28] I would summarize the appellant’s grounds of appeal as follows:

i. Did the motion judge deny the appellant procedural fairness during the motion hearing?
ii. Did the motion judge err by failing to find that the case met the tests set out in ss. 22(1)(b) and 23 of the CLRA, and err in his analysis of serious harm?
iii. Did the motion judge err by failing to stay the return motion under s. 40 of the CLRA given the outstanding refugee applications?

D. Analysis

(1) Did the motion judge deny the appellant procedural fairness during the motion hearing?

[29] The appellant argues that she was denied procedural fairness when the motion judge proceeded with the hearing despite her request for an adjournment. She argues that a reasonable standard of procedural fairness required the adjournment for several reasons. First, she clearly expressed to the court that despite her efforts to do so, she was not able to upload her materials to the court online filing system. Without the materials, the appellant says she was unfairly limited to providing oral evidence. She claims that she was at a linguistic disadvantage because English is not her first language. Second, the appellant argues that she did not understand the legal tests she was required to meet, nor did she understand the hearing procedure. In particular, she maintains that she was unaware of her right to cross-examine the respondent and was not given the opportunity to do so.

[30] I am not persuaded that the motion judge erred in failing to grant the appellant a further adjournment. The appellant was granted two previous adjournments to retain counsel and prepare for the hearing. At the first attendance, she was accompanied by counsel who, although not retained, provided her with assistance. She was accompanied by a community worker at the second attendance. The first adjournment was marked peremptory on the appellant. The second adjournment to the date before the motion judge was also marked peremptory on the appellant. The meaning of “peremptory” had been explained to the appellant. It was not in the interests of justice or the best interests of the child to further delay the matter. I see no error in the motion judge declining to exercise his discretion to grant a further adjournment.

[31] As for the appellant’s written materials, the appellant indicated that she had tried to upload her materials without success. While it would have been preferable for the motion judge to have asked the appellant if she had the materials with her and had served them on the respondent, this omission did not amount to reversible error. The appellant had been granted previous opportunities to serve and file her materials. There was a court-ordered timetable for the delivery and filing of materials. The motion judge’s decision to permit the appellant to give evidence viva voce was fair in the circumstances and avoided further delay in the best interests of the child. The appellant has failed to persuade me that she had an unfair hearing because she was not given an opportunity to present her case effectively: New Brunswick v. G.(J.), para 73.

[32] Giving only the respondent the opportunity to cross-examine raises the suggestion of procedural unfairness. Even-handed treatment of the parties would ordinarily have required that the appellant have the same opportunity. What occurred here may in part be explained by the fact that only the appellant gave oral evidence. In any event, I am not persuaded that this omission, by itself, amounted to reversible error in the circumstances of the case.

[33] This is because the motion judge declined to resolve the principal factual dispute between the parties concerning the appellant’s allegations of domestic violence, which the respondent vehemently denied. Since the motion judge did not base his decision on the credibility and reliability of the parties’ evidence, the exposure through cross-examination of any deficiencies in the respondent’s evidence would not have affected the outcome. Moreover, without determining the issue of the alleged domestic violence, the motion judge appraised these allegations in a way favourable to the appellant, accepting that the appellant “may have legitimate safety concerns for herself”.

[34] The appellant has not explained how, given the motion judge’s treatment of the domestic violence allegations, the opportunity to cross-examine the respondent would have affected the outcome.

[35] That said, in my view, the motion judge’s failure to resolve the disputed allegations of domestic violence itself amounts to an error that I discuss below.

(2) Did the motion judge err by failing to find that the case met the tests set out in ss. 22(1)(b) and 23(b) of the CLRA?

(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, 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.”

[45] The motion judge concluded that the s. 23(b) exception was not met, finding that “there was no evidence that the child would suffer serious harm if returned to [the respondent’s] care in Bangladesh” because there was “no evidence of [the respondent] harming the child”.

[46] On this point, the motion judge’s analysis was incomplete. Given the appellant’s evidence, the risk of physical harm to the child was not the only route to a finding of serious harm. It was an error for the motion judge to restrict his analysis to only this factor and to fail to consider the other potential bases for serious harm raised by the appellant, namely: 1) the potential effect on the child if the appellant’s allegations of domestic violence against her were true; 2) the child’s potential separation from her primary caregiver; and 3) the extinguishment of the child (and appellant’s) refugee applications.

(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 v. Grebliunas, 2022 SCC 22, 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, para 48. 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, para 125. As this court further instructed in Zafar v. Azeem, 2024 ONCA 15, 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.

[50] Relatedly, the appellant argues that the motion judge’s error in deferring these issues to the Bangladeshi courts flowed from making erroneous assumptions about how those courts operate in the absence of expert evidence. As a result, the appellant submits, the motion judge rejected the appellant’s suggestion that serious harm to the child arose from her inability to get a fair hearing in Bangladesh.

[51] I do not agree with the appellant’s submission on this point. The motion judge made no such assumptions.

[52] In particular, the motion judge did not err in determining that “[the appellant’s] fear of what a Court in Bangladesh might order with respect to parenting” did not, by itself, satisfy the criterion of “serious harm”.

[53] As the Supreme Court instructed in F. v. N., 2022 SCC 51, 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, 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.

[58] The motion judge did not engage in this analysis either.

(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.

[60] To be fair to the motion judge, the parties did not address the significance of the outstanding refugee claims in their submissions on the motion nor did the appellant provide at the hearing of the motion all the detailed evidence supporting her refugee claim that she later sought to proffer by way of fresh evidence on appeal. However, the existence of the pending refugee applications was known at the time of the motion. This was a relevant factor that the motion judge ought to have considered. His failure to do so affects the correctness of his analysis on the issue of serious harm.

(iv) Conclusion on These Issues

[61] In my view, the return order cannot stand in the face of these errors. I would therefore remit the issue of whether the court should assume jurisdiction under s. 23 to the Superior Court for a fresh determination.

(3) Did the motion judge err by not ordering an automatic stay of the CLRA proceedings in the face of the appellant’s and the child’s refugee applications?

[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.

(a) The Positions of the Parties, OCL and Interveners

[65] I start with a summary of the respective positions. As indicated at the outset of these reasons, the parties urge diametrically opposed interpretations of the ambit of this court’s decision in M.A.A.

[66] The appellant, OCL and interveners submit that M.A.A. requires the automatic stay of a motion to return a child under s. 40 of the CLRA when a refugee application for a parent or a child is outstanding. They argue that the decision in M.A.A. is clear that there are two separate analyses to be conducted in circumstances where refugee claims and non-Hague Convention jurisdictional disputes intersect: (1) an analysis of serious harm to the child(ren) pursuant to s. 23 of the CLRA; and separately (2) an assessment of how judicial discretion should be exercised pursuant to s. 40 of the CLRA. They say that this court held in M.A.A., unequivocally and independently of its determination of serious harm under s. 23 of the CLRA, that a return order must not be made under s. 40 of the CLRA in the face of a pending refugee claim. According to the appellant and the interveners, M.A.A. does no more than confirm the same principles set out in A.M.R.I.

[67] The respondent maintains that A.M.R.I. and M.A.A. do not stand for the proposition that all judicial discretion under s. 40 of the CLRA ceases the moment a refugee claim is filed. The respondent highlights that to the contrary, in the case of a wrongful abduction or retention, F. v. N. (SCC) reiterates the rebuttable presumption that it is in the best interests of a child to be returned to his or her home country. In light of this rebuttable presumption, the respondent argues, an outstanding refugee application for the child is only one consideration among many in this analysis such that the motion judge’s failure to consider it does not amount to reversible error. According to the respondent, the interpretation advocated by the appellant, OCL and interveners would frustrate the purposes of the CLRA and, importantly, undermine the court’s ability to apply the paramount principle of the best interests of the child.

(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
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 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, paras 25-27.

[84] The principle of non-refoulement “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations”: A.M.R.I., at para. 54, citing Németh v. Canada (Justice), 2010 SCC 56, paras 18-19. The court in A.M.R.I. acknowledged, at para. 55, citing Németh, at paras. 18-19, that “[t]he centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated” and that “[i]t has been described as ‘the cornerstone of the international refugee protection regime’ and aims at preventing human rights violations.”

[85] The court highlighted, at paras. 53-55, Canada’s international obligations regarding the principle of non-refoulement under s. 33(1) of the Refugee Convention and the Protocol Relating to the Status of Refugees, which Canada has ratified:

33 (1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.

[86] Section 115(1) of the IRPA codifies the principle of non-refoulement:

115(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

[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, para 58; Zafar v. Azeem, 2024 ONCA 15, 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.

[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.

[105] At the appeal hearing, counsel informed the court that the appellant and child’s refugee claims were scheduled to be heard in late January 2025. Assuming the hearing of the refugee applications proceeded as scheduled, the new Superior Court judge hearing the remitted CLRA issues afresh will therefore have the benefit of knowing the outcome of those applications.

[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. v. K.E.R., 2011 ONCA 417, 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.

E. Disposition

[108] I would allow the appeal. I would remit to the Superior Court a trial of the issues of whether the child faces a risk of serious harm pursuant to s. 23 and whether a return order should be made under s. 40 of the CLRA.

[109] The parties have agreed that there will be no costs of the appeal.

Released: April 16, 2025

“L.B.R.”
“L.B. Roberts J.A.”
“I agree. B.W. Miller J.A.”
“I agree. R. Pomerance J.A.”

Endnotes

[1] This court continues the use of initials pursuant to s. 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[2] The appellant did not argue that the child’s habitual residence was in Ontario or that the court should exercise its parens patriae jurisdiction over the parties’ dispute. She requests that the court assume jurisdiction under s. 22(1)(b) of the CLRA on the basis that the child has a real and substantial connection with Ontario and under s. 23 of the CLRA.

[3] For the purposes of respecting anonymity and with no disrespect intended, I shall refer to the parties’ child as “the child”.

[4] Throughout these reasons, I refer to the court’s obligation to assess the question of serious harm to the child. In so doing, I intend to reflect in this more summary form the precise articulation in the CLRA itself, which requires the court to be satisfied that the child “would, on the balance of probabilities, suffer serious harm if…removed from Ontario”.

[5] A Voice of the Child Report presents the views and preferences of the child to represent the child's viewpoint in a family matter.

[6] The OCL was appointed to represent the child pursuant to the order of Madsen J.A. dated November 26, 2024.

[7] A few weeks before this decision was released, counsel for the OCL and for the appellant sought to send “important new information” to the panel by way of email without a motion. As the panel had already made its decision before receipt of counsel’s request and as the respondent objected, we declined to receive the proffered information.

[8] Although the parties did not raise this issue, I note for future reference that given the respondent’s outstanding criminal charges, engaging with the allegations of domestic violence will require the court to consider how to do so while preserving the respondent’s defence to the criminal charges and his right to remain silent.

[9] The likelihood that the child’s refugee claim would be permanently extinguished if she were forced by a court order to return to Bangladesh was not entirely clear from the submissions.

[10] Section 24(3) of the CLRA sets out factors related to the circumstances of a child to be included in the determination of the best interests of a child for the purpose of making a parenting order or contact order. These include “any family violence and its impact” on “the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.”

[11] The court in A.M.R.I. did not stipulate the kind of evidence necessary to rebut the presumption of harm that arises from a determination of a child’s refugee status. As with any rebuttable presumption, the judge hearing the CLRA application will be in the best position to assess this.