Syed Kabir

The Court of Appeal for Ontario allowed the appeal of A.A. regarding the return of her child to Bangladesh under the Children’s Law Reform Act (CLRA) while refugee applications were pending.

The court found that the motion judge erred by failing to consider the impact of the outstanding refugee claims, the allegations of domestic violence, and the potential for serious harm to the child if returned.

The decision clarifies that the existence of a refugee claim does not automatically stay CLRA proceedings but is a significant factor in the analysis.

The matter was remitted for a new hearing.

This is a panel review of a single judge's order dismissing a motion to stay a return order for an infant child to Bangladesh, pending appeal.

The Court of Appeal majority granted the review, set aside the stay dismissal, and granted a stay of the return order.

The majority found that the single judge erred in principle by giving insufficient weight to the serious issue of the relationship between the Children's Law Reform Act and pending refugee claims, and by misapplying the irreparable harm and balance of convenience tests, particularly regarding the child's best interests and the potential loss of refugee status.

The dissenting judge argued that the majority conducted a de novo review rather than applying deference to the single judge's discretionary order.

The Court of Appeal heard cross-motions within an appeal concerning a child's return to Bangladesh.

The mother (appellant) sought to stay a lower court order for the child's return, arguing a pending refugee claim should preclude the order, and also requested initials and a publication ban.

The father (respondent) sought security for costs for the appeal.

The court dismissed the mother's stay motion, finding no evidence of merit to the refugee claim or irreparable harm, and that the child's best interests favored return to Bangladesh.

The court granted the mother's request for initials and a limited publication ban.

The father's motion for security for costs was dismissed, as it would impede access to justice.

The appellant, Farzana Ratan Sonia, appealed a motion judge's order recognizing a Bangladesh talaq divorce and setting aside prior consent orders.

The recognition of the foreign divorce precluded her claims for spousal support and equalization of net family property in Ontario due to limitation periods and the interpretation of the Family Law Act.

The Court of Appeal dismissed the appeal, affirming that the Bangladesh divorce, governed by the Muslim Family Laws Ordinance 1961, was not a "bare" talaq divorce and satisfied Canadian requirements for recognition due to state oversight and notice provisions.

The court also upheld the setting aside of consent orders due to the appellant's misrepresentation about her subsequent marriage.

Following a finding that the parties were validly divorced in Bangladesh in 2017, the court determined the cost consequences of the litigation.

The court found that the responding party commenced and conducted the family law proceeding in bad faith by advancing baseless allegations of fraud and forgery against the moving party, his counsel, and third parties.

Applying Rule 24(8) of the Family Law Rules, the court ordered costs on a full recovery basis.

The responding party was ordered to pay $298,292.34 in costs, reflecting a fair and reasonable amount given the egregious conduct and the extensive court resources consumed.

The moving party (husband) sought to set aside consent orders regarding the validity of a 2017 Bangladeshi divorce, arguing his consent was vitiated by the responding party's (wife's) misrepresentation that she had not remarried.

The court set aside the consent orders, finding the wife had misrepresented her marital status.

Upon reviewing the evidence de novo, the court found that the 2017 Bangladeshi divorce was valid, not obtained by fraud, and should be recognized in Canada.

Consequently, the wife's claims for spousal support were dismissed, and her claim for equalization of net family property was barred by the limitation period.

The respondent brought a motion within a family law proceeding seeking a declaration that the applicant had married a third party in Bangladesh in May 2020, which would impact her claims for spousal support and equalization.

The applicant denied the marriage and alleged the respondent was orchestrating a massive fraudulent conspiracy involving forged documents and perjured testimony.

After a detailed assessment of the evidence, including testimony from third-party affiants, hospital records, and handwritten letters, the court rejected the applicant's fraud allegations as baseless and found that she had indeed married the third party on May 24, 2020.

This endorsement addresses issues arising from the withdrawal of the applicant's counsel, Mr. Singha, following serious allegations by the respondent that counsel was aware of an alleged false marriage involving the applicant.

The court accepted counsel's categorical denial, noting his honourable decision to withdraw from the litigation.

The judge concluded that further inquiry into the allegations against counsel would be unproductive and costly, and closed the matter.

Directions were provided for the orderly transfer of the file to new counsel.

The moving party brought a motion for a finding that the responding party was in contempt of a prior consent order regarding the rental of jointly owned properties in Portugal.

The responding party brought a cross-motion to dismiss the contempt motion and argued that the Ontario court should decline jurisdiction based on forum non conveniens.

The court found that Portugal was the more convenient forum for issues related to the properties.

Furthermore, the court dismissed the contempt motion, finding that the moving party failed to prove beyond a reasonable doubt that the responding party deliberately or wilfully disobeyed the order, as a power of attorney was not required to rent the properties.

The applicant sought an uncontested divorce based on affidavit evidence.

The court dismissed the application without prejudice because the applicant failed to file a clearance certificate as required by Rule 36(4) of the Family Law Rules, failed to provide clear evidence regarding the respondent's prior marital status under Rule 36(5), and omitted the commissioning date on the amended affidavit.

The court also noted the requirements under section 12 of the Divorce Act for granting an earlier effective date for a divorce.

The applicant moved for retroactive and ongoing child support, section 7 expenses, a finding that the parties' Sharia Marriage Contract is enforceable, and an order compelling the respondent to grant a religious divorce.

The court ordered the respondent to pay child support arrears and ongoing support based on his 2018 income, as well as his proportionate share of section 7 expenses.

The court found the Sharia Marriage Contract to be a valid domestic contract under the Family Law Act, making the dowry an enforceable debt for equalization purposes.

Finally, the court ordered the respondent to provide the necessary consent and recitation for a Sharia divorce once initiated.