Court of Appeal for Ontario
Date: 2025-07-15
Docket: COA-24-CV-1058
Before: Simmons, Rouleau and Pepall JJ.A.
Between:
Tarek Hussein Abdulla Ahmed (Applicant/Appellant)
and
Rania Fathy Atia Abdelmoaein (Respondent)
Appearances:
Maneesha Mehra, for the appellant
Michael Zalev, for the respondent
Heard: 2025-06-17
On appeal from the order of Justice Adriana Doyle of the Superior Court of Justice, dated August 27, 2024, with reasons reported at 2024 ONSC 4735.
Rouleau J.A.:
Introduction
[1] This appeal is about what it means for a parent to “consent” to or “acquiesce” in a child’s retention in a foreign country under the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (“Hague Convention”), as implemented in Ontario in the Children's Law Reform Act, R.S.O. 1990, c. C.12, s. 46 (“CLRA”). The appellant and respondent visited Canada from the United Kingdom with their child in 2023, and the respondent decided not to return with the child. The central issue is whether the application judge’s decision not to order the return of the child was an error resulting from her improper interpretation and application of the terms “consent” and “acquiescence” as they appear in article 13(a) of the Hague Convention. For the reasons that follow, I would allow the appeal and order the return of the child to the U.K., the child’s place of habitual residence as found by the application judge.
A. Facts
[2] The appellant has dual British and Egyptian citizenship, and the respondent is an Egyptian citizen. The parties married on May 27, 2016, in Egypt, at which time the appellant was residing in London, U.K., and the respondent was residing in Egypt.
[3] Following their marriage, the parties secured a temporary spousal visa for the respondent, and she relocated to London in September 2019. The spousal visa must be renewed periodically.
[4] Since April 2018, the appellant has been employed as a group finance manager by a company located in the U.K. The respondent was previously employed in Egypt but has been unemployed since 2017.
[5] In December 2019, the respondent gave birth to the parties’ only child. The child was born in London and is a U.K. national. He is currently five years old. Prior to the parties’ trip to Canada in 2023, he had spent almost half of his life in the U.K., and the remainder of the time in Egypt.
[6] The parties’ matrimonial home is in London and has been owned by the appellant since 2010. The parties and the child resided in this home until they travelled to Canada on vacation in 2023, when the events underlying this application occurred. The appellant continues to own and reside in this home.
[7] In around 2018 or 2019, the parties began the application process to become permanent residents of Canada, with the intention of relocating to Canada at some point in the future. The respondent’s brother resides in Ottawa and encouraged the parties to consider immigration. He agreed to sponsor the family’s application.
[8] In March 2023, the respondent's brother advised the parties that the family was required to visit Canada to activate their visas. The family then arranged to travel to Canada on holiday. They purchased return airline tickets, with a departure from London scheduled on September 15, 2023, and a return to London on October 8, 2023, with some flexibility on the return flight.
[9] The appellant arranged for vacation time from his employment.
[10] Prior to their travel to Canada, the parties had registered the child in a day nursery school in London and paid for him to attend as of October 2023, upon their return.
[11] When they arrived in Canada, the family was granted permanent residence status. At the suggestion of the respondent's brother, the appellant also applied for an Ontario Photo Card.
[12] While visiting Canada, the parties resided with the respondent's brother in his rental accommodations in Ottawa.
[13] On September 28, 2023, the respondent advised the appellant that she did not wish to return to London, and that she and the child would be staying in Canada. The appellant was caught off guard by the respondent's pronouncement and was very upset. The appellant tried to persuade the respondent to change her mind so that they could return to their home in London. The respondent refused.
[14] The appellant accused the respondent of "kidnapping" the child and then left the residence. The respondent's brother demanded that the appellant return the apartment key to him, which the appellant did. The appellant then rented a hotel room.
[15] The next day, September 29, 2023, the appellant reported the issue to the British High Commission in Ottawa. He was told to contact “Reunite International”, who, in turn, recommended that he commence a Hague Convention application. The appellant was also advised to retain the child’s passport to prevent the respondent from travelling with the child to a non-Hague nation.
[16] Upon his return to London, U.K., the appellant contacted Reunite International and was assisted in submitting an application to the Central Authority, designated to assist in carrying out duties concerning the operation of the Hague Convention. On August 31, 2023, the Ontario Central Authority was contacted.
[17] The appellant’s Hague Convention application was issued on March 11, 2024. Difficulties in effecting service delayed the proceedings. Although the appellant has not seen the child in person since shortly after the September confrontation with the respondent, he has continued to have virtual parenting time with the child on a regular basis.
B. The Decision Below
[18] The application judge found that the child’s habitual residence was in the U.K. but that the appellant, through his actions, had consented to or acquiesced in the child’s retention in Canada. As a result, she dismissed the application for the return of the child.
[19] On the issue of habitual residence, the application judge reviewed and applied the relevant case law. She referenced the Supreme Court of Canada decision in Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 42-43, wherein the Supreme Court outlined a hybrid approach to determining habitual residence. Under this approach, the court will first determine the date when the wrongful removal or retention occurred. Then, the court must consider “the focal point of the child’s life – ‘the family and social environment in which its life has developed’ – immediately prior to the removal or retention”: Balev, at para. 43. As part of this analysis, the court will look at the child’s links with each country, as well as the circumstances of the move.
[20] The application judge found as a fact that September 28, 2023, was the date of the child’s alleged wrongful retention in Canada. As a result, she had to determine the child’s habitual residence on that date.
[21] The application judge then reviewed the evidence establishing the child’s links to both the U.K. and Canada as of September 28 and found that the child’s habitual residence was in the U.K. That finding has not been appealed.
[22] The application judge next turned to whether any of the six exceptions set out in the Hague Convention applied such that the court would not be required to order the return of the child despite the finding of wrongful removal or retention. She found that the father had consented to or acquiesced in the retention, and that the exception in article 13(a) therefore applied. She reasoned that there was clear and unequivocal evidence that the parties intended to move to Canada, and they had simply disagreed on when the move was to occur. She concluded that the fact that the parents had discussed their desire to move to Canada and had taken concrete steps to complete the requirements for permanent residency amounted to consent or acquiescence as set out in article 13(a). The application judge therefore declined to exercise her jurisdiction to return the child to the U.K.
C. Issues on Appeal
[23] The issues raised on appeal are:
- Did the application judge err in applying the article 13(a) exception and concluding that she was not required to order the child’s return?
- If the child should be returned to London, U.K., what conditions, if any, should be imposed?
D. Discussion
[24] The stated “Purposes” of Part III of the CLRA, through which the Hague Convention is incorporated into Ontario law, include, at ss. 19(b) and (c):
(b) to recognize that the concurrent exercise of jurisdiction … in relation to the determination of decision-making responsibility with respect to the … 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 abduction of children as an alternative to the determination of decision-making responsibility by due process.
[25] The Hague Convention has two stated objectives:
(a) to ensure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively represented in the other Contracting State.
See CLRA, at s. 46; Hague Convention, at art.1.
[26] Both Canada and the U.K. are contracting states of the Hague Convention. All signatories to the Hague Convention are presumed to make decisions based on the child's best interests: Leigh v. Rubio, 2022 ONCA 582, at para. 45.
(1) The Hague Convention Framework
[27] As this court explained in Ludwig v. Ludwig, 2019 ONCA 680, at para. 40, determining whether a child should be returned from Ontario to their habitual residence under the Hague Convention requires a two-step analysis:
a. The court must first determine when the alleged wrongful removal or retention took place, and in which state the child was habitually resident immediately prior to that removal or retention. If the child is found to have habitual residence in Ontario at the time of the removal or retention, the Convention does not apply.
b. If Ontario was not the child’s place of habitual residence at the time of the removal or retention, the court must order the return of the child unless one of the enumerated exceptions under articles 13 or 20 applies. These exceptions prevent the return of a child to a place where they are at grave risk of physical or psychological harm or returning the child would otherwise place the child in an intolerable situation, or where returning the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. The return of the child is also not required where the left-behind parent was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention.
[28] It is the engagement of this consent/acquiescence exception that is at issue in this appeal.
[29] Article 13(a) of the Hague Convention provides as follows:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
Nonobstant les dispositions de l'article précédent, l'autorité judiciaire ou administrative de l'Etat requis n'est pas tenue d'ordonner le retour de l'enfant, lorsque la personne, l'institution ou l'organisme qui s'oppose à son retour établit:
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. (Emphasis added.)
a) que la personne, l'institution ou l'organisme qui avait le soin de la personne de l'enfant n'exerçait pas effectivement le droit de garde à l'époque du déplacement ou du non-retour, ou avait consenti ou a acquiescé postérieurement à ce déplacement ou à ce non-retour. (Accent ajouté.)
[30] The issue in this appeal is whether the appellant “had consented to or subsequently acquiesced in” the retention of the child in Canada. As this court explained in Katsigiannis v. Kottick-Katsigiannis, at paras. 46 and 47, the terms “consent” and “acquiescence” in article 13(a) of the Hague Convention should be given their plain and ordinary meaning. To consent is “to agree to something, such as the removal of the child from their habitual residence,” and to acquiesce is “to agree tacitly, silently, or passively to something, such as the child remaining in a jurisdiction which is not their habitual residence.” Consent is given beforehand and is usually explicit, and acquiescence occurs afterwards and is generally passive – unstated consent, determined by words and conduct: Katsigiannis, at paras. 47-48.
[31] In Katsigiannis, at para. 49, the court also explained that “to trigger the application of the article 13(a) defence there must be clear and cogent evidence of unequivocal consent or acquiescence.” The test is subjective on the part of the left-behind party. In other words, the left-behind party must have subjectively intended to consent or acquiesce. The burden is on the party seeking to justify the wrongful removal or retention. That party must show some conduct by the other party which is inconsistent with the summary return of the child to their habitual residence: Katsigiannis, at paras. 49 and 52.
[32] Consent applies to a particular time. For example, in Katsigiannis, the fact that the father consented to the mother’s departure to Ontario with the child for a vacation – that is, he consented to the child's removal – did not constitute consent to the retention of the child in Canada.
[33] Whether a parent consented to or acquiesced in a removal or retention for the purposes of the article 13(a) exception is a factual determination and is therefore entitled to considerable deference on appeal: Unger v. Unger, 2017 ONCA 270, at para. 7. Absent a serious misapprehension of evidence or an error in law, this court will not intervene: Hammerschmidt v. Hammerschmidt, 2013 ONCA 227, at para. 5.
(2) Did the Application Judge Err in Her Application of the Article 13(a) Exception?
[34] The appellant maintains that the application judge erred in her interpretation of “consent” and “acquiescence” pursuant to article 13(a) of the Hague Convention. In the appellant’s submission, the application judge conflated these separate legal concepts, for which the jurisprudence directs distinct analyses. Further, the appellant argues that while “consent” and “acquiescence” apply only to a defined temporal period, the application judge focused on the question of whether the appellant had consented to a move or relocation at some undefined point in the future. If the proper interpretation of consent and acquiescence as they appear in article 13(a) is applied to the facts as found by the application judge, the article 13(a) exception is not engaged, and the return of the child to the U.K. ought to have been ordered.
[35] The respondent, for her part, maintains that the application judge properly interpreted and applied the consent/acquiescence exception to return under the Hague Convention. In the respondent’s submission, the application judge’s conclusion that the consent/acquiescence exception applied was firmly rooted in the comprehensive evidentiary record and a careful assessment of the parties’ intentions, conduct and credibility. On appeal, the appellant is simply asking the court to rehear and retry the case. The application judge’s finding that the appellant consented to or acquiesced in the retention is a factual determination entitled to deference, and it ought not to be interfered with.
[36] In my view, the application judge erred in her analysis of consent and acquiescence. As I will explain, the application judge conflated the concepts of consent to or acquiescence in retention with consent to relocation.
[37] The trial judge’s factual findings clearly establish that on September 28, 2023: a) the child was wrongfully retained in Ontario; and b) the child’s habitual residence was in the U.K. In addition, the application judge found that the parents took the trip to Canada with the shared intention of returning to the U.K.:
[On September 28, the] parents had an argument, and the [respondent] told the [appellant] that she and the child were not returning to the UK. On this date, the intention of not returning to the UK and keeping the child in Canada was made and steps were taken towards that end.
The family’s intention was to return [to the UK] after their holiday in Canada.
Clearly, the parents were intending to return to the UK as they had return tickets (even though the mother stated that there was some flexibility on the return flight). The father still had a job, and the child was registered in a nursery.
[38] These findings make it clear that the appellant consented to travel to Canada. That consent did not, however, constitute consent to the retention of the child in Canada after the September-October 2023 trip.
[39] The trial judge also accepted the undisputed fact that the appellant objected immediately, on the date of the wrongful retention:
On September 28, 2023, the mother told the father that the family should remain in Canada and process the visa requirements in Canada rather than in the UK.
The father objected and returned to the UK without the mother and child and commenced the process of the Hague application before the court.
[40] The trial judge then went on to consider whether the article 13(a) exception applied. It is at this point that she erred. She made a series of findings including that:
a. the appellant confirmed that the parties had been considering immigrating to Canada since around 2019;
b. upon entry into Canada, the appellant signed the permanent residency forms in the presence of immigration officers at the airport;
c. in September 2023, while in Canada, the appellant applied for an Ontario Photo Card;
d. the appellant looked online for jobs, as well as at homes that would be near the child’s school in Canada;
e. the appellant and respondent had no extended family in the U.K.; and
f. even though the plane tickets were return tickets with a return date of October 8, 2023, they were flexible and could be changed.
[41] Based on these findings, the application judge concluded that the parties’ “desire to eventually move to Canada” and the concrete steps they took “to apply and complete the requirements” for the visa “equate[d] to consent or acquiescence to the relocation of the child.”
[42] This analysis conflates consent or acquiescence to a relocation or move with the child to Canada at some future date with consent or acquiescence to the retention of the child in Canada at the time of the retention. It is the latter that is contemplated in article 13(a) of the Hague Convention; the parties’ intention to move to Canada at a later date has no bearing on the article 13(a) analysis. As a result, the application judge erred in using the finding of consent or acquiescence to relocation to satisfy the article 13(a) requirement that the father had consented to or subsequently acquiesced in the child remaining in Canada at the time of the wrongful retention on September 28, 2023.
[43] The relevant legal question was whether the appellant had consented to the retention as of September 28, or whether he acquiesced in the retention sometime after that date. As noted above, the application judge found that, “[o]n September 28, 2023, the [respondent] told the [appellant] that the family should remain in Canada” and “[the appellant] objected and returned to the UK without the [respondent] and child and commenced the process of the Hague application before the court.” It is clear from these findings that the appellant did not consent to the retention on September 28, 2023.
[44] It is also clear from these findings that the appellant took immediate steps such that he could not be said to have subsequently acquiesced in the retention. Acquiescence requires that the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting and is not going to assert his or her right to demand the summary return of the child: Jackson v. Graczyk, 2007 ONCA 388, at para. 50. As the application judge found, the appellant immediately objected and has, since that date, sought the child’s return through the Hague Convention process.
[45] In my view, therefore, there was no consent or acquiescence to the respondent’s wrongful retention of the child in Ontario and I would order the return of the child forthwith to his place of habitual residence located in London, United Kingdom, pursuant to article 12 of the Hague Convention and s. 40 the CLRA.
(3) Should This Court Impose Conditions as Part of the Return Order?
[46] The parties have filed fresh evidence providing the court with some information on the child’s circumstances since the wrongful retention. The child has been living in Ottawa with the respondent since October 2023. He is currently in senior kindergarten. Since October 2023, the appellant has not had in-person visits with the child, though he has had regular video chats on weekends. The fresh evidence also reports that the respondent’s visa for residence in the United Kingdom has expired, and that she has no income and has not received any child support. The fresh evidence also contains information regarding the appellant’s relatively modest means and his continued relationship with the child.
[47] At the conclusion of the hearing, the court asked the parties to provide the panel with any undertakings they wished the court to consider imposing should the appellant be successful on the appeal.
[48] In my view, it is in the child’s best interests to include some of these undertakings as part of the return order: see F. v. N., 2022 SCC 51, at para. 98. While the undertakings provided by the respondent are more in the nature of detailed parenting orders, which will be for the U.K. courts to address, the undertakings provided by the appellant are appropriate in the circumstances, pending further order of the court or written agreement of the parties. They recognize that the child is very young, and a significant period of time has elapsed since his last in-person contact with the appellant. The respondent, who is the child’s primary caregiver, has limited financial means and her status in the U.K. is precarious. The appellant’s undertakings relate to the child’s travel documents and schooling; payment for flights, monthly child support and assistance with housing; non-removal and parenting orders; and cooperation in obtaining a visa for the respondent. These undertakings, which are set out in a letter from the appellant’s counsel to the court dated June 20, 2025, are to be made part of the s. 40 return order and will remain in place pending court order or any written agreement of the parties to change them. For clarity, the undertakings incorporated in this order are not intended to, nor do they, preclude a court in the U.K. from rendering contrary directions or a different order.
[49] As a result, I would order the child’s return to the U.K. and include the undertakings provided by the appellant’s counsel as part of the return order.
[50] If, prior to the child’s return to the U.K., the parties cannot agree on the interpretation of the undertakings, they may bring a motion for directions in the Superior Court of Justice. The appellant is entitled to costs fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.
Released: July 15, 2025
“J.S.”
“Paul Rouleau”
“I agree. Janet Simmons”
“I agree. S.E. Pepall”