In a recent Ontario Court of Appeal decision, the court allowed the appeal of a decision that ordered the return of three young children to their father to Kuwait, despite allegations of abuse against him and pending refugee claims.
Mother Flees to Canada with Children
The mother and father are Jordanian citizens. They married in Kuwait on May 30, 2008. They had their three children, two sons and one daughter, currently aged 4, 7, and 11.
On March 14, 2018, an incident occurred which led to the parents’ separation. The mother alleged that she was attacked by the father in front of the children. She said that this was part of a pattern of ongoing personal and sexual violence that she suffered and could no longer tolerate. The police were called, but the parents were advised not to bring charges. The father denied the allegations.
The parties separated and commenced court proceedings in the Hawally Family Court in Kuwait. The mother and children stayed in the family home and the father had access every Friday for twelve hours and on certain holidays.
Two months later, on May 14, 2018, the mother left Kuwait with the children and sought refugee status in Canada. She did not seek the father’s consent, nor did she advise him in advance.
In response, the mothersubmitted that the children would suffer serious harm if returned to Kuwait. She said the father had been violent towards her and the children and they were afraid of him. She referred to a legal system in Kuwait that could not protect her or the children in a meaningful way. The basis for the mother’s claim was s. 23 of the CLRA, which, despite other jurisdictional limits, permits an Ontario court to exercise its jurisdiction to make custody and access orders where the child is physically present in Ontario and the court is satisfied on a balance of probabilities that the children would suffer serious harm if removed from Ontario.
Lower Court Orders Children Back to Kuwait
At trial, expert reports were submitted in which the children described their father’s abuse towards them and their mother.
In response, the father strenuously denied all allegations of abuse and submitted evidence from witnesses to the same effect. The father claimed that the mother had only returned to Canada to be with her family and that the allegations of abuse were a ruse.
Ultimately, the application judge found that Ontario did not have jurisdiction under s. 23 of the CLRA because there was no risk of serious harm to the children and ordered the children returned to Kuwait. The judge did not accept the mother’s allegations of abuse. The application judge’s decision was issued before the mother and children’s refugee claims had been decided.
The mother appealed the decision.
Court of Appeals Orders Children to Stay in Canada
The Court of Appeal found that the application judge had erred in determining that Ontario could not exercise jurisdiction to make custody and access orders because she was not satisfied on a balance of probabilities that the children would suffer serious harm if returned to Kuwait. The court found that she erred by discounting the children’s evidence on the basis that it was the product of the mother’s inappropriate influence in the face of uncontradicted evidence from three separate experts that the children’s views were in fact independent and by not explaining why the expert evidence should be rejected.
After reviewing the evidence, the court found that on a balance of probabilities the children would suffer serious harm if returned to Kuwait.
As a result, the court found that an Ontario court may exercise its jurisdiction to make custody and access orders for the children.
Further, the court found that the application judge had erred by ordering the children’s return under s. 40(3) of the CLRA before the determination of their refugee claims. It stated that the children were entitled to protection as they sought asylum. The court explained that a return order must not be made under s. 40(3) in the face of a pending refugee claim, stating:
“It defies common sense to require children to await a refugee determination because the case for serious harm may get stronger. If the court is satisfied as to serious harm, it may exercise jurisdiction under s. 23 and proceed to make custody and access orders for the children even before the refugee determination.[…]
When the issue is potential harm to children, the courts must always be guided by the children’s best interests. If a rebuttable presumption of harm arises from a refugee determination following an adverse s. 23 finding, the court would be required to revisit the s. 23 determination using the rebuttable presumption flowing from the child’s new status as a refugee. […]
When a request is made for the court to exercise jurisdiction under s. 23 in the face of a pending refugee claim, but the court is not satisfied that the serious harm requirement has been met, the court may want to consider exercising its power under s. 40(2) to stay the proceedings until the refugee claim is determined. However, even when the court concludes that the s. 23 test was not previously met, it will always be required to revisit the s. 23 analysis in light of the refugee determination and through the lens of the rebuttable presumption of harm. Most importantly, the return order under s. 40 could not be made before the refugee claim is resolved.”
As a result, the court allowed the appeal and ordered a custody and access hearing to proceed in the Superior Court of Justice as soon as possible.
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