When families face separation and there are questions about where a child should live, legal processes can become complex, especially when international borders and refugee claims are involved. A recent decision by the Court of Appeal for Ontario in A.A. v. Z.S.M. sheds important light on how Ontario courts interpret the interplay between provincial family law legislation, specifically the Children’s Law Reform Act (CLRA), and federal immigration and refugee laws when a parent seeks the return of a child to their alleged habitual residence while a refugee claim is pending. This case clarifies how these legal frameworks interact and offers guidance for parents facing similar circumstances.

Understanding Motions for the Return of a Child Under the Children’s Law Reform Act

In Ontario, when there is a dispute about a child brought to or being kept in the province and who may habitually reside elsewhere, a parent can bring a motion under section 40 of the CLRA seeking the child’s return. This section operates on the principle that, in cases of wrongful removal or retention, it is generally in a child’s best interests to be promptly returned to the place where they usually live. This approach aims to minimize the disruption caused by one parent taking a child away without the other parent’s consent and encourages the resolution of decision-making responsibility (custody) and parenting time (access) matters in the jurisdiction with the closest connection to the child.

However, the CLRA also recognizes that there may be exceptional circumstances where a child’s return could expose them to serious harm. Section 23 of the CLRA allows an Ontario court to assume jurisdiction over a child who is physically present in Ontario if the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if they remain with a person entitled to their care, are returned to such a person, or are removed from Ontario. This “serious harm” exception is a critical safeguard to protect children in vulnerable situations.

The Intersection of Refugee Claims and Child Return Orders

The legal landscape becomes even more intricate when a parent and child have made a claim for refugee status in Canada while a motion for the child’s return is before the court. A refugee claim is based on the assertion that returning to the country of origin would place the claimant at risk of persecution, torture, or cruel and unusual treatment. This involves Canada’s obligations under international law, specifically the principle of non-refoulement, which prohibits the return of a refugee to a place where they would face such dangers.

A question that often arises is how a pending refugee claim should be considered in the context of a motion under section 40 of the CLRA. Does the fact that a child and/or their parent has applied for refugee status automatically prevent a court from ordering the child’s return? The Court of Appeal for Ontario considered this key issue in A.A. v. Z.S.M.

Examining Previous Case Law

The Court in A.A. v. Z.S.M. had to interpret its previous decision in M.A.A. v. D.E.M.E. In M.A.A., there were allegations of domestic violence forming the basis of both a serious harm claim under section 23 of the CLRA and pending refugee applications. Some parties interpreted M.A.A. as establishing a strict rule: a pending refugee application automatically stays any CLRA proceeding for the child’s return until the refugee claim is finalized through all levels of appeal. They pointed to a statement in M.A.A. that “a return order must not be made under s. 40(3) in the face of a pending refugee claim.”

However, the Court in A.A. v. Z.S.M. clarified that this interpretation of M.A.A. was incorrect. The Court of Appeal stated that the statement in M.A.A. should not be taken out of context. Reading the M.A.A. decision as a whole, it does not create an automatic bar to a return order simply because a refugee claim is pending.

The Middle Ground: A.A. v. Z.S.M. Clarifies the Law

In A.A. v. Z.S.M., the Court of Appeal adopted a “middle ground”. It held that while a child’s outstanding refugee claim is an essential factor that the Court must consider when deciding whether to order a return under section 40 of the CLRA, it does not automatically halt the return motion or restrict the Court’s discretionary power.

The Court reasoned that imposing an automatic stay would be inconsistent with the CLRA, the Immigration and Refugee Protection Act (IRPA), and the principles previously laid down by the Supreme Court of Canada. No provision in either the CLRA or the IRPA mandates such an automatic prohibition. Furthermore, such a rigid rule could prevent the Court from taking necessary actions to protect the best interests of children, particularly in cases of wrongful abduction or retention.

The appeal court in A.A. v. Z.S.M. emphasized that the statement in M.A.A. suggesting a bar to return orders should be understood within the specific facts of that case, which involved significant allegations of harm and a Voice of the Child Report detailing the child’s fear of the father. The Court also pointed to another paragraph in M.A.A., which stated that when serious harm under section 23 is not established, the Court “may want to consider exercising its power under s. 40(2) to stay the proceedings until the refugee claim is determined.” The words “may want to consider” indicate a discretionary power, not a mandatory requirement.

The Significance of Pending Refugee Claims in the Court’s Discretion

The A.A. v. Z.S.M. decision makes it clear that while a pending refugee claim does not automatically stop a return motion, it is a significant factor that the court must carefully weigh when exercising its discretion under section 40 of the CLRA. The Court must balance the objectives of return orders under provincial law, such as discouraging child abduction and ensuring that custody disputes are resolved in the jurisdiction of the child’s habitual residence, against Canada’s federal and international obligations concerning refugees, particularly the principle of non-refoulement (i.e. not forcing refugees or asylum-seekers to return to a country where they would face persecution).

This means that when a court faces a return motion and a pending refugee claim, it must consider the potential consequences of a return order on the refugee claim. Returning a child (and potentially their parent) to their country of origin could lead to the deemed abandonment of their refugee application, potentially exposing them to the very harm they are seeking protection from. This potential loss of refugee rights is crucial to the court’s overall assessment.

The Interplay with Allegations of Serious Harm

The existence of a refugee claim is often intertwined with allegations of serious harm under section 23 of the CLRA. The reasons for seeking refugee status frequently overlap with the grounds for arguing that a return would place the child at risk of serious harm, such as domestic violence or other forms of persecution.

In A.A. v. Z.S.M., the mother opposed the child’s return to Bangladesh, arguing that the child would face serious harm due to allegations of domestic violence against the father, which also formed the basis of her refugee claim. The motion judge had ordered the child’s return without fully considering these allegations or the pending refugee applications. The Court of Appeal found this to be an error, emphasizing that the motion judge should have considered whether the mother’s allegations of domestic violence could give rise to serious harm to the child if returned.

The Court highlighted that “family violence” under the CLRA includes a child’s direct and indirect exposure to violence between family members, and exposure to violence against a parent can cause emotional harm and behavioural problems in children. Therefore, allegations of domestic violence must be carefully considered in the serious harm analysis under section 23. The Court may even need to hold an oral hearing to properly assess the credibility and significance of these allegations, especially when they are central to the dispute and involve refugee children.

The Best Interests of the Child Remain Paramount

Ultimately, in all decisions concerning children, the child’s best interests are the paramount consideration. When a court is dealing with a return motion under section 40 of the CLRA and there is a pending refugee claim, the Court must undertake a comprehensive analysis that considers all relevant factors through the lens of the child’s best interests. This includes:

• The child’s age and stage of development;
• The child’s connection to Ontario and their habitual residence;
• The potential harm the child might face if returned;
• The impact of a return on the child’s (and their parent’s) refugee claim;
• The identity and stability of the child’s primary caregiver; and
• Any legitimate barriers to the primary caregiver’s return to the habitual residence, such as safety concerns.

The Court in A.A. v. Z.S.M. specifically noted that the motion judge should have considered whether a return order would separate the child from her primary caregiver (her mother) and whether this separation would cause the child serious harm, especially given the mother’s “legitimate safety concerns” that might prevent her from returning to Bangladesh.

Implications for Parents Facing Child Return Motions and Pending Refugee Claims

The decision in A.A. v. Z.S.M. provides essential clarity for parents facing motions for their children’s return while they also have pending refugee claims in Canada.

The Importance of Pending Refugee Claims in Family Law Cases

A pending refugee claim is a significant factor that the Court must consider. It should not be ignored and can have profound implications for the child’s safety and well-being.

No Automatic Stay on Return Motions

There is no automatic stay of a return motion simply because a refugee claim has been filed. The Court retains its discretion to consider all the circumstances of the case.

Domestic Violence Relevant to “Serious Harm”

Allegations of domestic violence that form the basis of a refugee claim are also relevant to the “serious harm” analysis under section 23 of the CLRA. The Court must properly consider these allegations, and an evidentiary hearing may be necessary.

Return Order and Refugee Claim Must Be Considered Holistically

The potential impact of a return order on the refugee claim, including the risk of deemed abandonment, is a factor the court must weigh.

Best Interests of the Child Is the Most Critical Factor

The best interests of the child remain the paramount consideration in all aspects of the decision.

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