août 12. 2020

Appeal Court Reverses on Return to Kuwait for Asylum-Seeking Mother and Kids

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

In an appeal of case we reported on only a few weeks ago, the Ontario Court of Appeal reversed a judge’s prior order that three children be returned to Kuwait despite allegations that their father – who lived in that country – had physically and sexually abused their mother.

As we reported the facts in that prior Blog: Two years ago the mother of three children removed them from Kuwait and brought them to Canada without the father’s consent. This was about two months after what she said was a physical attack by the father, in front of the children. When she arrived in Canada, she claimed refugee status for herself and the children, based on allegations that the father had been abusive on multiple occasions, and that Kuwaiti law was inadequate to offer the needed protection.

In asking the Ontario court to exercise its jurisdiction to decide her custody-related claims in connection with the children, the mother claimed that the governing two-part legal test had been met, namely: 1) the children were physically present in Ontario; and 2) on the evidence they would suffer serious harm if removed from the province. The mother had offered uncontroverted expert evidence in support of the second aspect. Meanwhile the father – who strenuously denied attacking the mother or being abusive – countered by applying for an order to have the children returned to Kuwait.

The application judge found against the mother, having not been satisfied on a balance of probabilities that there was a risk of serious harm to the children. Despite the pending refugee claim, the judge ordered the children to be returned to Kuwait immediately.

The mother brought an appeal (which incidentally was heard by videoconference, and was supported by several intervenors, including the Office of the Children’s Lawyer (OCL), the United Nations High Commissioner for Refugees, and Amnesty International Canada). In her view, the application judge had wrongly discounted certain evidence.

The Court of Appeal agreed. It concluded that the children’s uncontradicted and independent testimony – as provided through three separate OCL experts – clearly established a risk of serious harm to them if they returned to Kuwait. The application judge had wrongly discounted that evidence on the apparent basis that it could not be given sufficient weight, or that it was the product of the mother’s inappropriate influence.

As just one example, the Appeal Court recounted that the eldest boy had described his father as mean, angry and threatening. He recounted how his father had threatened to hurt him with a belt or hot iron. The boy was also consistent in his evidence as to his desire to stay in Canada. Yet the application judge had concluded – with no apparent legal basis or explanation – that this evidence could not be counted on, and that the boy mainly wanted to stay in Canada to be near his mother, and because it was a peaceful place to live. The judge also offered no explanation for rejecting the uncontested evidence of numerous expert witnesses. This, the Appeal Court ruled, was an error.

On the balance of probabilities there was an established risk of serious harm to the children, so the application judge should have exercised the jurisdiction to make a custody order on-the-spot. Moreover, the children were entitled to protection during the process of seeking asylum; they should not have been ordered returned to Kuwait. Instead, the application judge could have exercised various legal options, such as adjourning the present matter until their refugee hearing could be held.

In the end, the Appeal Court overturned the prior ruling and ordered that a custody and access hearing was to proceed in the Ontario Superior Court of Justice as soon as possible.

For the full text of the Appeal decision, see:

M.A.A. v. D.E.M.E., 2020 ONCA 486

[This post by Russell Alexander first appeared on FamilyLLB.com on August 11, 2020]