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A pending refugee claim is a significant factor, but not an automatic bar, to ordering a child's return under the Children's Law Reform Act.
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.
The Court of Appeal granted a stay of an order returning an infant to Bangladesh pending appeal, citing the serious issue of a pending refugee claim.
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.
