Court of Appeal for Ontario

Date: September 5, 2025

Docket: M56173 (COA-24-CV-1058) & M56192 (COA-25-CV-0986)

Motion Judge: Madsen J.A.

Between

Tarek Hussein Abdulla Ahmed Responding Party (Applicant/Appellant)

and

Rania Fathy Atia Abdelmoaein Moving Party (Respondent/Respondent in Appeal)

Counsel

For the moving party: Farrah Hudani, Michael Stangarone, Jane North and Tiffany Guo

For the responding party: Maneesha Mehra and Fadwa Yehia

Heard: August 15, 2025

Endorsement

A. Overview

[1] On July 15, 2025, this court ordered the return of a young child to the United Kingdom ("U.K."). The father was successful in his appeal from a Superior Court order that dismissed his application for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 (the "Hague Convention"). This court ordered that a series of undertakings provided by the father form part of the return order and that, in the event of disagreement about interpretation of those undertakings, the parties should bring a motion for directions in Superior Court.

[2] Further to this court's decision, the father brought an urgent motion in Superior Court seeking the return of the child to him in the U.K., enforcement of undertakings upon the mother's return to the U.K. with the child, and police enforcement. On July 30, 2025, the Superior Court motion judge made an interim-interim order pending the outcome of the stay motion before this court, ordering that the child not be removed from Canada by anyone other than the father and that the child's passports be provided to the father's counsel.

[3] The mother brings two motions: a motion to stay this court's order for the return of the child pending the outcome of her application for leave to the Supreme Court of Canada; and a motion to stay the order of the Superior Court motion judge, also pending the outcome of that leave application. The motions are brought pursuant to s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, and r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194.

[4] For the following reasons, the motion for a stay of this court's order is dismissed. The motion for a stay of the interim-interim order is, as is explained below, moot.

B. Brief Background

[5] The father has British and Egyptian citizenship. The mother is an Egyptian citizen.

[6] The parties married in 2016 in Egypt. The mother relocated to the U.K. in 2019 under a temporary spousal visa, which must be renewed from time to time.

[7] The parties have one child, B., who is five years old and has British and Egyptian citizenship.

[8] 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 mother's brother agreed to sponsor the family's application.

[9] In March 2023, the parties arranged to visit Canada on holiday, to activate their visas. They purchased airline tickets with flexible return dates. The father took vacation time from employment, and the parties arranged for day nursery school for the child for after their return to the U.K.

[10] When the parties arrived in Canada, the family was granted permanent residence status. The father applied for an Ontario Photo card. The parties stayed with the mother's brother.

[11] During the visit, on September 28, 2023, the mother told the father that she did not wish to return to the U.K. and that she and the child would be staying in Canada. The father was caught off guard. He tried unsuccessfully to persuade the mother to change her mind. The mother refused.

[12] The father returned to the U.K. and promptly arranged for a Hague Convention application to issue, seeking the return of the child to the U.K.

C. The Decision Below

[13] The application judge found that the child's habitual residence was the U.K. but that the father, through his actions, had consented to or subsequently acquiesced in the child's retention in Canada. As a result, she dismissed the application for the return of the child.

[14] On the issue of habitual residence, the trial judge referenced the decision of the Supreme Court of Canada in Office of the Children's Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 42-43. She reviewed the child's links with the U.K. and Canada immediately prior to September 28, 2023, the date of the wrongful retention, concluding that the child's habitual residence was the U.K. That factual determination was not appealed.

[15] The application judge then considered whether any of the exceptions set out in the Hague Convention applied such that the court would not be required to order the child's return. She found that the father had consented to or subsequently acquiesced in the retention and that therefore the exception in art. 13(a) applied. She reasoned that there was clear and unequivocal evidence that the parties intended to move to Canada but disagreed on when the move was to occur. She therefore declined to order the return of the child to the U.K.

D. This Court's Decision, July 15, 2025

[16] The father appealed.

[17] On July 15, 2025, a unanimous panel of this court (Simmons, Rouleau, and Pepall JJ.A.) allowed the appeal. Rouleau J.A., writing for the court, held that the application judge erred in her analysis, conflating concepts of consent to and subsequent acquiescence in retention with the distinct concept of consent to relocation.

[18] The court emphasized the following factual findings of the trial judge: that the child was habitually resident in the U.K. at the time of the retention; that when the parties took the trip to Canada, they intended to return to the U.K.; and that the child was wrongfully retained in Ontario. These factual findings are entitled to deference. The court held that the relevant legal question was whether, based on these factual findings, the father consented to the child's retention in Canada as of September 28, 2023, or acquiesced sometime after that date, not whether the parties had a desire to "eventually move to Canada."

[19] On the facts as found by the application judge, it was clear that the father neither consented to nor subsequently acquiesced in the retention. It was an error to equate an agreement to relocate the child at some future date with the consent or subsequent acquiescence required to engage the exception to mandatory return under the Hague Convention.

[20] This court held that the child should be returned to the habitual residence of the U.K. for a determination of parenting issues and invited written submissions as to undertakings relating to the return in the child's best interests. The court directed that the undertakings provided by the father's counsel were to be included as part of the return order, which was made pursuant to s. 40 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, and that in the event of disagreement in interpreting those undertakings, the parties were to bring a motion in Superior Court.

E. Interim-Interim SCJ Decision, July 30, 2025

[21] Immediately following this court's decision, disagreement ensued about the implementation of the undertakings.

[22] As noted in the overview, the father then brought an urgent motion on short notice in the Superior Court seeking various relief. On July 30, 2025, the Superior Court motion judge made an interim-interim order pending the outcome of this stay motion, ordering that the child not be removed from Canada by anyone other than the father and that the child's passports be provided to the father's counsel.

F. Request for Stay of OCA Order

[23] As indicated, the mother seeks a stay of the order of this court pending her application for leave to appeal to the Supreme Court of Canada.

[24] The test for a stay pending appeal is set out in RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, and requires the court to consider: whether there is a serious question to be argued on appeal; whether the applicant will suffer irreparable harm if the stay is refused; and, on a balance of convenience, which party would suffer greater harm from the granting or refusal of a stay: BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; J.P.B. v. C.B., 2016 ONCA 996, 2 R.F.L. (8th) 48, at para. 14. The factors are not watertight compartments – the strength of one may compensate for weakness of another. The overarching consideration is whether the interests of justice require a stay: International Corona Resources Ltd. v. Lac Minerals Ltd., (1986), 21 C.P.C. (2d) 252 (Ont. C.A.).

[25] In cases involving children, "the overriding consideration … is the best interests of the child. In other words, the court must be satisfied that it is in the best interests of the child to grant a stay": N. v. F., 2021 ONCA 688, 158 O.R. (3d) 565, at para. 36, citing D.C. v T.B., 2021 ONCA 562, at para. 9, and K.K. v. M.M., 2021 ONCA 407, at para. 17. The mandatory return provisions under the Hague Convention, subject only to limited exceptions, presume that a child's best interests are usually aligned with their prompt return to the jurisdiction of their habitual residence: see F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, commenting on analogous return provisions in provincial legislation. At the same time, the requirement of the Hague Convention to secure the "prompt return of children" in appropriate cases does not translate into a more stringent test for a stay: Maharaj v. Maharaj (2001), 146 O.A.C. 317, at para. 15.

Serious Issue to be Tried

[26] When the request is for a stay pending leave to the Supreme Court of Canada, the serious question component must be considered in light of two additional factors: the strict leave requirements of the SCC, under which the proposed appeal must present a question of public or national importance or raise an issue of legal importance; and that the decision of first instance has already been considered by an appellate court: Leis v. Leis, 2011 MBCA 109, 275 Man. R. (2d) 55, at paras. 4-5. As stated in Leis, at para. 6, "the threshold on the 'serious question' factor is much higher on applications for stay pending appeal to the Supreme Court of Canada than those for stay pending appeal to provincial appellate courts." See also BTR Global, at para. 18; N. v. F., at paras. 24-25.

[27] The mother argues that her proposed appeal to the Supreme Court meets the elevated serious question test. She asserts that her proposed appeal raises the following issues:

a. Whether the analysis of consent under art. 13(a) of the Hague Convention should be expanded to be consistent with the habitual residence analysis set out in Balev;

b. Whether undertakings should be finalized together with the return order, with both parties having an opportunity to provide submissions; and

c. Whether courts should be required to consider each party's intention individually and together at the time of the alleged wrongful retention, as well as who the primary caregiver was in the determination of the focal point of the child's life immediately prior to the removal or retention.

[28] In my view, the mother's proposed appeal does not raise a serious issue to be tried in the context of a leave application to the Supreme Court. It raises questions of neither national nor legal importance. The law on the questions she raises is well-settled, with extensive direction already in place from the Supreme Court to guide lower courts. The mother's proposed appeal seeks to re-argue factual findings that can only be displaced based on palpable and overriding error.

[29] There are a number of other difficulties with the mother's proposed arguments on appeal.

[30] First, her suggestion that the interpretation of the exception of "consent" should be "expanded" to mirror the hybrid approach to determining habitual residence under Balev is in direct conflict with the language of Balev itself, in which the Supreme Court emphasized the narrow scope of the exceptions: at para. 76. Under Balev, parental intention will already have been considered in the determination of the child's habitual residence: Ludwig v. Ludwig, 2019 ONCA 680, 437 D.L.R. (4th) 517, at para. 40. Moreover, the explicit language of the art. 13(a) exception makes clear that it is the consent of the person requesting the return that is relevant:

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 – 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…

[31] The mother's argument on this issue runs counter to the express language in the Hague Convention, as well as the clear direction of the Supreme Court on the treatment of consent.

[32] Second, the concerns raised by the mother about the proper procedure for undertakings is specific to these parties. It is of neither national nor legal importance. The law on undertakings is well established in Supreme Court jurisprudence: Thomson v. Thomson, [1994] 3 S.C.R. 551. Rouleau J.A. ordered undertakings following written submissions by both parties, accepting those proposed by the father, and quite properly (and practically) directed that issues of interpretation should be addressed at the Superior Court. No serious question presents on the issue of undertakings.

[33] Finally, the mother's third proposed question is essentially an attempt to relitigate the trial judge's factual determination of the child's habitual residence, which, on the extensive evidence before her, she found to be the U.K. The mother now argues, in submissions not made on the appeal to this court, that the trial judge erred in stating that the fact that the mother was the primary caregiver is not relevant to the habitual residence determination. The trial judge correctly articulated the hybrid approach to the determination of the child's residence as directed by Balev and, on the facts of this case, found that the focal point of this child's life was in the U.K., where he lived with his parents before the wrongful retention in Canada. In my view, no serious issue meeting the Supreme Court of Canada's leave threshold arises from this proposed ground of appeal.

Irreparable Harm to the Applicant or the Child

[34] Irreparable harm is characterized by the nature, rather than the magnitude of harm. It is harm which either cannot be quantified in monetary terms or cannot be cured, usually because one party cannot collect damages from the other: RJR MacDonald Inc., at p. 341.

[35] A parent cannot engineer harmful circumstances and then rely on that "self-engineered harm" to indefinitely frustrate a return order: F. v. N., 2022 SCC 51, 475 D.L.R. (4th) 387, at paras. 82, 166.

[36] The mother submits that she and the child will suffer irreparable harm if a stay of this court's order is not granted pending her leave application. She says the child will be removed from his primary caregiver and will reside with his father whom he has not seen for over two years. She states that because she does not have a valid visa to enter the U.K., this may result in the child's permanent separation from her.

[37] I am unable to conclude that the mother or the child will suffer irreparable harm if the stay is not granted. Rather, she has participated in engineering, or at a minimum has taken no steps to mitigate, the harm upon which she now seeks to rely. The child has been ordered to be returned to the U.K. In her affidavit materials for this motion, the mother states that she is unlikely to obtain a visa for the U.K., but nowhere sets out what efforts she has made to put herself in a position to return with the parties' son. There is no indication that she has hired U.K. immigration counsel, applied for employment in the U.K., or taken any other steps to make possible a return to the U.K. with the child. At no point in advance of the hearing of the motion did the mother confirm that she would – unequivocally – comply with this court's order even if this stay were not granted. Instead, she has focused on the obstacles to her own return to the U.K. while taking no steps to advance that process.

[38] Further, both parties tendered expert reports on this motion in relation to visa/immigration options for the mother in the circumstances. The father's expert, Mr. Roberts, sets out what appear to be two viable options for the mother's return to the U.K., both of which rest on her status as a parent of a British child. The mother has not demonstrated that they are infeasible. The mother's own expert report confirms available options and the greater likelihood of success if the child is in the U.K. at the time of her visa application.

Balance of Convenience

[39] Assessing the balance of convenience requires the court to determine which party will suffer greater harm from the granting or refusal of a stay, as determined on the unique facts of each case.

[40] Where a child's interests are at the heart of the appeal, the child's best interests are the overarching consideration.

[41] The mother submits that if a stay is not granted, leave to appeal is granted, and her appeal is successful, the child will have to relocate twice. He will experience significant disruptions in his routine and his caregiving environment. Granting the stay, by contrast would give the child stability, and "spare the Mother a timely and uncertain immigration process to obtain the requisite visa to enter the United Kingdom." The mother also states that her and the child's permanent residency status in Canada would be compromised by a return to the U.K. earlier than September 16, 2025. Finally, she asserts that a stay will not harm the father's interests and that there is no urgent need for the child to return to the U.K.

[42] I do not accept these arguments. For the reasons I have set out, in my view the mother is unlikely to be granted leave to the Supreme Court of Canada from this court's unanimous decision.

[43] The child has been ordered returned to his habitual residence, where the parenting arrangements that are in his best interests will be determined. It will be open to the mother to argue before the U.K. court that it would be in the child's best interests to move with her to Canada. In the meantime, the child has been wrongfully retained in Ontario for nearly two years. The balance of convenience favours returning the child to the country of his habitual residence. It will be for the mother to make the necessary arrangements – a process which, as I have indicated, she does not appear to have started – to facilitate her own return to the U.K. if she chooses. The order of this court did not make the child's return contingent upon her return. Further litigation, in my view, appears to be an effort to delay the child's return, rather than a genuine effort to mount a viable appeal.

Conclusion on Motion for Stay of OCA Decision

[44] Accordingly, the mother's motion for a stay of the decision of Rouleau J.A. made July 15, 2025, is dismissed.

G. Confirmation of Undertakings

[45] Rouleau J.A. ordered that the undertakings proposed by the father on appeal comprise part of the s. 40 CLRA return order.

[46] To assist the parties and provide further clarity, those undertakings are confirmed and incorporated into my order below.

H. Request for Stay of Interim-Interim SCJ Order

[47] The mother commenced an appeal in this court of the interim-interim SCJ order, and on this motion sought a stay thereof, pending the determination of her application for leave to the Supreme Court.

[48] In light of my conclusion regarding dismissing the mother's request for a stay of the OCA order, including the undertakings confirmed herein, the mother's motion for a stay of the SCJ order is moot. The temporary relief ordered by the Superior Court is of no further force and effect in light of the return order and the undertakings.

I. Disposition

[49] The motion to stay the order of Rouleau J.A. made July 15, 2025, is dismissed.

[50] The motion to stay the interim-interim order of Bergeron J. of the Superior Court is dismissed as moot.

[51] The child shall be returned to the U.K. no earlier than September 16, 2025. The mother shall advise the father by September 12, 2025, in writing as to whether she is able and intends to accompany the child to the U.K.

a. If the mother is able and intends to accompany the child, he shall be returned with her to the U.K. no later than September 26, 2025.

b. If the mother is not able or does not intend to accompany the child or does not advise the father as contemplated in this paragraph, she shall make the child available to the father so that he may accompany the child on a day of his choosing after September 16, 2025, on his written notice of no less than 48 hours.

[52] The mother shall direct that the child's Egyptian passport be released to the father effective September 16, 2025.

[53] The mother shall forthwith request that her brother either provide the father with the father's Permanent Residence card or provide a sworn statement confirming that the PR card is not and has not been in his possession.

[54] Costs are fixed at $7,500 payable by the mother to the father, inclusive of HST and disbursements. If the mother has not paid these costs within 30 days of this order and accompanies the child to the U.K. as is provided for below, these costs may be set off on a dollar-for-dollar basis against the financial assistance from the father to the mother, set out in paras. 56(7)(e)(i)-(ii), below, at the father's option.

J. Confirmation of Undertakings

[55] In the appeal decision of July 15, 2025, the court ordered the inclusion of the undertakings provided by the father's counsel in the return order. I confirm these undertakings, which shall be applied in a manner consistent with timelines set out in my order above, as follows:

[56] The father is bound by the following undertakings:

1. The father shall not obtain any further travel documents for the child without mutual agreement in writing or court order.

2. The father shall cooperate with the mother and/or her immigration counsel, as needed, to assist the mother to obtain visas to travel to and remain in the U.K. If it is possible, the father shall specifically cooperate for the mother to obtain a spousal visa.

3. The father shall pay for the return flight for the child, which shall be a one-way ticket from Ottawa, Canada to London, U.K.

4. The father shall register the child to attend school in the catchment area of the matrimonial home, and the father shall be responsible for any related school fees.

5. The father shall consent to an order for non-removal of the child from Ontario, pending his return to London, U.K.

6. The father shall, upon the child's arrival in London, U.K., consent to an order for non-removal of the child from the U.K., pending further written agreement of the parties and/or court order.

7. If the mother gives notice, as provided for in para. 51 above, that she is able and intends to accompany the child to the U.K.:

a. The father shall immediately confirm the validity of the child's British Passport with the passport office and shall supply the British Passport to the mother for the purpose of returning the child to London, U.K.

b. The father shall pay for the mother's return flight from Ottawa, Canada to London, U.K.

c. Upon the child's arrival in the U.K., the father shall surrender any and all travel documents he has for the child to be held by the father's U.K. counsel, pending further written agreement of the parties and/or court order.

d. Upon the mother's arrival in the U.K., the father shall pay monthly child support in accordance with U.K. law, based on his income and upon not having any overnight parenting time with the child. Based on the father's current annual income, child support payments shall be £544.86 per month.

e. The father shall provide the mother with one of the following forms of financial assistance for housing:

i. Monthly Financial Assistance: The father shall provide the mother with CAD$2,500 per month, for a period of six months.

ii. Lump Sum Financial Assistance: If the father can secure a further loan, he shall provide a lump sum of CAD$10,000 to pay for the first four months of assistance. Following the mother's first four months residing in the U.K., the father shall pay CAD$2,500 per month, for an additional two months.

iii. Matrimonial Home for the mother and the child: The father shall relocate for a period of six months, and the mother and child shall reside in the matrimonial home. The father shall not pay additional financial assistance for housing.

f. The father shall consent to the child residing primarily with the mother, with regular and consistent parenting time for the father, pending further written agreement of the parties and/or court order.

8. In the event that the mother does not give notice, as provided for in para. 51 herein, that she is able and intends to accompany the child to the U.K., or does not give notice at all, the father is additionally bound by the following undertakings:

a. The father shall attend in Ottawa to retrieve the child and travel back with him to London, U.K.

b. The father shall reside with the child in the matrimonial home.

c. The father shall cooperate with the mother to arrange regular and consistent virtual parenting time for the mother, and in-person parenting time as may be requested by and as is practicable for the mother.

[57] The mother is bound by the following undertakings:

1. The mother shall not obtain any further travel documents for the child without mutual agreement in writing or court order.

2. The mother shall consent to an order for non-removal of the child from Ontario, pending his return to London, U.K.

3. The mother shall, upon the child's arrival in London, U.K., consent to an order for non-removal of the child from the U.K., pending further written agreement of the parties and/or court order.

4. Should the mother accompany the child to the U.K., the mother is bound by the following additional undertakings:

a. Upon the child's arrival in the U.K., the mother shall surrender any and all travel documents she has for the child to be held by the father's U.K. counsel, pending further written agreement of the parties and/or court order.

b. The mother shall cooperate to arrange regular and consistent parenting time for the father, pending further written agreement of the parties and/or court order.

Madsen J.A.