Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2024-10-18 Docket: M55433 & M55438 (COA-24-CV-1001)

Before: Nordheimer J.A. (Motions Judge)

Between: A.A., Applicant (Respondent/ Moving Party/Responding Party) And: Z.M., Respondent (Appellant/ Responding Party/Moving Party)

Counsel: Maneesha Mehra and Archana Medhekar, for Z.M. Michael J. Stangarone, Tiffany Guo and Syed Kabir, for A.A.

Heard: October 17, 2024

Endorsement

[1] There are two motions before me in this matter. Z.M. (hereafter “the mother”) brings a motion to stay the order of Sharma J. dated August 22, 2024 that, among other things, ordered the return of the child of the marriage (age 13 months) to Bangladesh. The mother also seeks an order initializing the proceeding and granting a limited publication ban. A.A. (hereafter “the father”) brings a motion for an order requiring the mother to post security for costs for her appeal.

[2] This matter concerns a Bangladeshi family who travelled on round-trip tickets to Canada for a three-week vacation on May 2, 2024. They travelled on visitor visas and were scheduled to return to their home in Bangladesh on May 25, 2024.

[3] While in Canada, the mother expressed her unilateral wish for the family to remain in Canada permanently by seeking asylum here. The father opposed, on the basis that they had a home in Bangladesh, he had secure employment and stable financial circumstances, and they had ample support in their home country. The parties discussed extending their trip in Canada by approximately one week. The parties then argued over the mother’s continued demand to remain in Canada with their daughter by filing a refugee application. The argument led to the mother calling the police. She made allegations against the father, resulting in the father being criminally charged.

[4] The father sought an order to return the child to Bangladesh by filing an urgent motion seeking a return order along with interim parenting time. He also commenced a proceeding in Bangladesh seeking custody of the child and an order that she be returned. There is no information as to the status of that proceeding.

[5] The mother caused delay in the hearing of the motion by refusing to serve or file any responding material. The mother also sought adjournments of the motion, allegedly for the purpose of retaining counsel which never occurred. As a result, the motion was adjourned from June 24, 2024 to July 4, 2024 peremptory on the mother. It was then further adjourned to August 22, 2024, again peremptory on the mother. The mother’s request for another adjournment on August 22, 2024 was denied by the motion judge. The father was successful before the motion judge and obtained an order requiring the child to be returned to Bangladesh. The mother has now appealed that order.

[6] The motion judge gave detailed reasons for his conclusion. In particular, he noted that the mother had not filed any material in response to the father’s motion. As a consequence, the motion judge allowed the mother to give viva voce evidence before him. He noted that, in her evidence, the mother acknowledged that the child was born in Bangladesh and has always lived in Bangladesh. She also acknowledged that she has an uncle and aunt in Bangladesh, who provided her with support. The mother said that she has two children from a previous marriage that live in Bangladesh and whom she wishes to be able to visit. The motion judge also noted that the mother did not give any evidence that the child would suffer serious harm if she was returned to Bangladesh.

[7] In addition, the mother gave evidence that she had started a refugee claim in Canada for herself and her child. She refused to say how she could have commenced this application without the father’s consent. She also did not provide any information as to the factual foundation for this refugee claim.

[8] The mother and child currently live in a shelter. The mother has no support in this country and no apparent source of income.

A. Motion for stay

[9] The motion judge recognized that Bangladesh is not a signatory to the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"). As such, the governing law for the motion is the Children's Law Reform Act, R.S.O. 1990, c. C.12. The motion judge referred to the decision in F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, where Kasirer J. said, at para. 59:

In sum, parents whose children have been abducted from a non-party country can apply for their return pursuant to s. 40 of the CLRA. Unless the abducting parent demonstrates that Ontario courts should make parenting orders on any one of the four bases outlined above (ss. 22(1)(a) or (b) or 23, or parens patriae jurisdiction), the courts should decline to exercise jurisdiction with respect to a child [citation omitted].

[10] The motion judge, correctly in my view, held that neither s. 22(1)(a) nor (b) had any application to this case. He also concluded that s. 23 did not apply because there was no evidence that the child would suffer serious harm if returned to the father’s care in Bangladesh. I do not see any error in the motion judge’s conclusion on that point either.

[11] The mother’s submissions on the stay request focussed almost entirely on the decision of this court in A. (M.A.) v. E. (D.E.M.), 2020 ONCA 486, 152 O.R. (3d) 81, leave to appeal refused, [2020] S.C.C.A. No. 402. It is the mother’s position that, if there is a refugee claim made then, in all circumstances, no return order should be made until the refugee claim is determined. Indeed, the mother took the position that this should be the result even if the record before the court showed that there was no merit to the refugee claim.

[12] This contention is based on certain statements in A. (M.A.) including:

Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers. (para. 63)

Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim. (para. 68)

A return order must not be made under s. 40(3) in the face of a pending refugee claim. (para. 72)

[13] In my view, the mother reads the decision in A. (M.A.) in much too literal a fashion. That decision cannot be read separately from the factual foundation on which it was based. In that case, there was evidence of serious harm to the mother and the children arising from an abusive relationship that caused them to leave their home country of Kuwait. Indeed, there was evidence directly from one of the children (age 11) of the prospect of harm to him from his father if he was returned to Kuwait. There was also evidence that the mother had taken the children from Kuwait, brought them to Canada, and immediately made an asylum claim.

[14] This case is fundamentally different on its facts. The mother, father, and child came to Canada for a three-week holiday. There was no discussion of seeking asylum until some time after they arrived. In addition, it is unclear when the mother made her refugee claim. It was not made on May 2 when they arrived. In fact, it had not been made by July 4, when the matter was before Horkins J. because, in reference to the potential refugee claim, Horkins J. notes in her endorsement that “She has not commenced this process.”

[15] The mother did not put any information before the motion judge as to the basis for her refugee claim. I note that the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides status to a person as a convention refugee or person in need of protection where, among other reasons, there is a “well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion” or where a person needs protection because of a danger, “believed on substantial grounds to exist”, of torture, risk to life, or risk of cruel and unusual punishment.

[16] There was simply no foundation put before the motion judge to suggest that there was any merit to the mother’s refugee claim. She did not provide any such information prior to the hearing, and she did not provide any such information when she gave evidence at the hearing. In addition, she has not put any such information before the court on this motion.

[17] In my view, the decision in A. (M.A.), properly and fairly read, does not stand for the blanket proposition that, in every case where a refugee claim is made, the court is without jurisdiction to exercise its authority under the CLRA. If that were to be the case, it would be simply too easy to thwart the imposition of necessary remedies that are intended to be applied when a child is abducted from their habitual home.

[18] I would also note, on this point, that refugee claims can take months, in some cases years, to resolve. If the child in this case was required to stay in Canada while that process unfolds, she could well wind up spending more time in this foreign country than she has in her home country. If that were to occur, it would then add an additional level of complication as to the best interests of the child if a determination was subsequently made denying the refugee claim. The child would then be returned to her home country with less connection to it than to this country.

[19] I would add, on the point of the best interests of the child, that she is currently living in a shelter with no support structure whereas, if returned to Bangladesh, she would be in the country of her birth, with supportive relatives, a home, and a father who is gainfully employed with a steady income.

[20] The test for a stay is well-established. It requires a serious issue, irreparable harm to the applicant and that the balance of convenience favours the applicant. Because the test for a serious issue is very low, I am prepared to accept that the debate over the scope of the decision in A. (M.A.) can constitute a serious issue. The irreparable harm alleged is that the mother and child will lose their refugee claim if they return to Bangladesh. I note that there is no requirement that the mother return to Bangladesh. It is only the child that must do so under the motion judge’s order. If the mother were to remain here and obtain refugee status, she could always seek custody of her child through the courts of Bangladesh.

[21] Regardless of those considerations, there has to be evidence that there is some merit to the refugee claim – perhaps a scintilla of evidence – and here there is none. Irreparable harm cannot arise from the loss of a proceeding which has no apparent merit.

[22] Also on the irreparable harm issue, the mother argues that she will suffer irreparable harm if the child is returned to Bangladesh since there are “no protections in place” to ensure that the child is returned to Ontario if the appeal is successful. In response, the father has undertaken to return the child to Ontario if the appeal is successful. I appreciate that the father’s undertaking is not a guarantee that the child will be returned. However, if the father does not do so, the mother can seek the assistance of the courts in Bangladesh. I am told that the courts in Bangladesh apply the best interests of the child test that our courts do. I assume that the courts in Bangladesh will take all relevant factors into consideration in reaching a decision on any such application by the mother. In any event, the risk that the mother might not be successful does not constitute irreparable harm. I note, on this point, that the court in F. v. N. said that “protective measures”, such as a party’s undertaking, can attenuate the risk of harm. I also note the point made in F. v. N. where Kasirer J. said, at para. 88:

The proper approach recognizes that inconsistencies between local and foreign legal regimes will usually not amount to serious harm if the best interests of the child principle remains the paramount consideration in all decisions concerning children.

[23] In terms of the balance of convenience, I have already set out that the child was born in Bangladesh and has only known that country. She has a home, support, and financial security there. The balance of convenience favours her return.

[24] The motion for a stay is dismissed.

B. Initializing the proceeding

[25] The mother seeks an order that the parties be allowed to use their initials in this proceeding. The father opposes the order, but not strongly.

[26] The open courts principle directs that all court proceedings be open and available to the public. There is however a recognized exception to that requirement and that is where the interests of children are involved.

[27] Given that the child is central to the issues raised in this proceeding, I do not see any reason not to apply that exception. The open courts principle is not seriously harmed by the use of initials in a case such as this.

[28] I therefore grant an order permitting the parties to use their initials. The mother sought a companion publication ban only with respect to any material in this court record that would identify the parties. In order to support the purpose of allowing initials to be used by the parties, such a very limited publication ban is necessary. I therefore grant an order banning the publication of any information contained in the court record that might tend to identify the parties or the child.

C. Security for costs

[29] The father seeks an order that would require the mother to post security for costs for the proceeding, including her appeal, in an amount of slightly more than $30,000. He says that the mother does not have any assets in Ontario to pay the costs of the proceeding below or of the appeal.

[30] In deciding motions for security for costs, judges are to consider the justness of the order sought in all the circumstances of the case, with the interests of justice at the forefront: Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 22.

[31] While I may have concerns over the merits of her appeal, that does not change the fact that the mother is entitled to pursue it. Requiring her to post security for costs would preclude her from doing so. The interests of justice should not lead to that result.

[32] The motion for security for costs is dismissed.

D. Conclusion

[33] The motion for a stay is dismissed but an order is made, in accordance with the father’s undertaking, that he is to return the child to Ontario if the mother’s appeal is successful. An order is granted permitting the parties to use their initials and an order is granted banning the publication of any information contained in the court record that might tend to identify the parties or the child. The motion for security for costs is dismissed. I would not make any order as to the costs of these motions.

“I.V.B. Nordheimer J.A.”