Aug 4, 2020

COURT OF APPEAL SUMMARIES (July 27-31, 2020)

M.A.A. v. D.E.M.E., 2020 ONCA 486 (CanLII)

[Benotto, Fairburn and Jamal JJ.A.]

Counsel:

Sarah Clarke and Cheryl Robinson, for the appellant

Daryl Gelgoot, Vanessa Amyot and Barbara Jackman, for the respondent

Sheena Scott, Caterina Tempesta and Roger Rowe, for the Office of the Children’s Lawyer

Michael Bossin, Laïla Demirdache, Jacqueline Bonisteel, and Jamie Chai Yun Liew, for Amnesty International Canada

Archana Arun Medhekar, for the Barbra Schlifer Commemorative Clinic

Maureen Silcoff and Adam B. Sadinsky, for the Canadian Association of Refugee Lawyers

Lorne Waldman, Charles Steven and Sumey Mulla, for the United Nations High Commissioner for Refugees

Keywords: Family Law, Custody and Access, Child Abduction, Immigration Law, Refugee Claims, Principle of Non-Refoulement, Civil Procedure, Fresh Evidence, Children’s Law Reform Act, R.S.O., 1990, c. C.12, ss. 23, 40(3), 46, Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 101(1)(c)), 115(1), Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) (the “Hague Convention”), 1951 Convention relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (the “1951 Convention”), H.E. v. M.M., 2015 ONCA 813, Ojeikere v. Ojeikere, 2018 ONCA 372, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, A.M.R.I. v. K.E.R., 2011 ONCA 417

Facts:

The appellant is the mother of three children now ages 4, 7, and 11. Two years ago, she brought them from Kuwait to Canada without the respondent father’s consent. On arrival in Canada, she sought refugee status for herself and the children. She claimed she fled an abusive relationship that put her safety and that of her children at risk of serious harm. The father denied the allegation and claimed that she wrongfully kidnapped the children.

The father applied for an order requiring that the children be returned to Kuwait. The mother asked Ontario to exercise jurisdiction to decide her custody claim. The basis for her claim was s. 23 of the Children’s Law Reform Act, R.S.O., 1990, c. C.12 (“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 child would suffer serious harm if removed from Ontario.

The application judge found that Ontario did not have jurisdiction under s. 23 because there was no risk of serious harm to the children. She ordered the children returned to Kuwait. The mother appealed.

Issues:

Did the application judge err in determining that the children were not at risk of serious harm, and therefore that she had no jurisdiction under s. 23 of the CLRA?

Holding:

Appeal allowed.

Reasoning:

Yes. The issues are best addressed in two stages: 1. the serious harm analysis under s. 23 of the CLRA; and 2. the effect of the refugee claim on the application.

(1) Serious harm under s. 23

Under Ojeikere v. Ojeikere, 2018 ONCA 372, the determination of serious harm is based on the consideration of the following factors: (i) the risk of physical harm; (ii) the risk of psychological harm; (iii) the views of the children; and (iv) the mother’s claim that she would not return to the habitual residence even if the children were required to do so.

The application judge determined 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. In coming to this conclusion, she discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence. She made this assessment in the face of uncontradicted evidence from three separate OCL experts that the children’s views were in fact independent. She did not explain why this expert evidence should be rejected. This was an error.

The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests – which is engaged in all child-related matters – must incorporate the child’s view.

While it was open to her to reject the mother’s testimony and conclude that the mother may have tried to influence the children’s views, to reject the three experts’ evidence that the children’s views were actually independent and free from influence required explanation. Absent any explanation as to why the application judge did not accept the three experts, her conclusion could not stand.

All of the Ojeikere factors were present here. There was a risk of physical and psychological harm, the children’s views were clear and – considering the new evidence including the “obedience order” issued by the Kuwaiti court – the mother could not realistically return to Kuwait. She had been the primary caregiver since birth and the children would likely lose their primary caregiver if forced to return to Kuwait. The father’s statement that he would not enforce the custody order or the obedience order offered little reassurance. On the evidence, the Court was satisfied on the balance of probabilities that the children would suffer serious harm if returned to Kuwait. The Ontario court may therefore exercise its jurisdiction to make custody and access orders for these children.

(2) Effect of the refugee claim on the application

The principle of non-refoulement forbids a country from returning an asylum seeker to a country in which they would likely be in danger of persecution. This principle has been considered the cornerstone of international refugee protection. Canada has implemented the principle of non-refoulement in s. 115(1) of the Immigration and Refugee Protection Act.

The principle of non-refoulement applies not only to recognized refugees, but also to asylum seekers whose status has not yet been determined. Refugee protection is not limited to those granted refugee status but applies equally to asylum seekers. If, under the CLRA, a child is ordered returned to a place from which asylum is sought, the child’s rights to asylum are lost. A person is not permitted to continue a refugee claim once in their home country. Nor is the person entitled to make a second claim should the person return to Canada.

Children are entitled to protection as they seek asylum. The application judge erred by ordering their return under s. 40(3) of the CLRA before the determination of the refugee claim.

The Court disagreed with the OCL’s submissions (and the mother’s alternate submission) that the entire application, including the mother’s request that Ontario exercise its jurisdiction to make custody and access orders for the children under s. 23 of the CLRA, should have been adjourned pending the refugee determination. The Court gave three reasons.

First, it is the s. 40(3) return order that would engage the non-refoulement principles, not the s. 23 analysis. Section 40(3) empowers the court to make a return order in extra-provincial matters. Section 40 confers broad powers on the court and unlike the terms of the Hague Convention, does not require a return of the child to his or her habitual residence absent engagement of the harm exception. A return order must not be made under s. 40(3) in the face of a pending refugee claim. The Court left to another day how the court should proceed if a return order to a signatory country was sought under the Convention in the face of a pending refugee claim.

Second, the OCL submitted that the serious harm analysis in s. 23 should not proceed until the refugee determination is made because it is only after a positive refugee determination that the children would have the benefit of a rebuttable presumption of the risk of harm. Refugee status gives rise to a rebuttable presumption of a grave risk of harm on return to the child’s habitual residence. 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. The Court did not share the OCL’s concern that in the face of a pending refugee claim a court might, as here, conclude that it was not satisfied as to serious harm under s. 23 and the rebuttable presumption would be lost. 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. Under s. 23, the court must be satisfied that the child would, on the balance of probabilities, suffer serious harm. When the child becomes a refugee, there is a fundamental shift in the court’s approach by introducing a rebuttable presumption that the child would with some certainty suffer serious harm. Introducing a rebuttable presumption means the court must consider harm differently for the purpose of s. 23. 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.

Finally, the best interests of the child require that when the court is satisfied as to serious harm under s. 23, there be no further delay in making custody and access orders. This case demonstrated why. The new evidence described that the children were anxious, exhibited physical symptoms, and were unsure of their immediate future. A delay was not in their best interests.

The matter was remitted to a new custody and access hearing before the Superior Court.