When a child is removed to another jurisdiction, courts must carefully assess the evidence to make orders and decide issues such as the child’s habitual residence. Although cases should be dealt with promptly, a recent case has emphasized that factual issues need to be resolved before a judge can make conclusions. In other words, it is crucial to ensure that procedural fairness and natural justice are not undermined for the sake of expediency.

Trial Judge Makes Decision on Affidavit Evidence

In Zafar v. Azeem the mother sought to have the parties’ three-year-old child declared habitually resident in Ontario and asked for sole decision-making responsibility for the child. The issues in his case stemmed from a visit the mother and child took to Pakistan. The mother claimed that she and the child would spend time in Pakistan visiting her parents, after which the father would come to Pakistan and they would all return to Canada. However, the trip quickly turned into a lengthy stay from November 2021 to January 2023. Although the mother claimed it was her intention to return to Canada she said the father would not purchase tickets for their return. On the other hand, the father claimed the mother intended to stay in Pakistan.

The relationship between the parties deteriorated, and when the father was in Pakistan initiating divorce proceedings, the mother returned to Ontario with the child. In response to the mother’s application, the father brought his own motion and commenced an action in Pakistan and asked the Court to decline jurisdiction over the matter, as he claimed the child was habitually resident in Pakistan. The father was successful in his motion and the child was ordered returned to Pakistan. Importantly, the decision was based solely on affidavit evidence.

The Framework for Cases of International Child Abduction

The mother appealed this decision and argued that she was denied procedural fairness by rushing to a judgment. She claimed that the motion judge failed to consider whether the child was habitually resident in Pakistan or Ontario, and also failing to consider whether the child would be at risk of serious harm if returned to Pakistan.

The framework for cases involving an allegation of international child abduction first requires determining whether the case involves a country that is a party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”). As the Court noted, parties to the Convention “are committed to making decisions based upon the best interests of children”. Importantly, Canada does not recognize Pakistan as a signatory to the Convention, which meant that its terms did not apply. Rule 37.2(3) of the Family Law Act requires international child abduction cases to be dealt with promptly, but unlike Hague Convention cases, non-Hague Convention cases do not have to be disposed of within a six-week timeline. For cases not covered by the Convention, the provisions of the Children’s Law Reform Act (also referred to as the “CLRA”) apply.

The mother’s application requesting a parenting order required the Court to determine if it had jurisdiction. Section 22 of the Children’s Law Reform Act grants Ontario courts jurisdiction over children habitually resident in Ontario, and those not habitually resident in Ontario if certain conditions are met, including if the child is physically present in Ontario at the commencement of the application for the order. In this case, the parties disagreed on the child’s habitual residence. However, if there is no basis to assume jurisdiction under section 22, section 23 of the Children’s Law Reform Act enables courts to exercise jurisdiction over a child if the child is in Ontario and “the court is satisfied that the child would, on the balance of probabilities, suffer serious harm” if removed from Ontario. Here, the parties’ child was present in Ontario, so even if the habitual residence was not Ontario, the Court could exercise jurisdiction if it determined there was a risk the child could suffer serious harm if removed from Ontario.

Additionally, section 40 of the Children’s Law Reform Act states if a court is satisfied a child has been wrongfully removed to Ontario, it may make a parenting order that is in the best interests of the child, including ordering the return of the child to such a place the court considers appropriate. This gives the court discretion to order the return of a child.

More Evidence Needed to Decide Issues When Parties’ Account Conflicts

On appeal, the mother argued that the judge erred by deciding the issue on a summary process when there was conflicting evidence and the Court of Appeal agreed. When the case came before the judge, it was clear that the parties’ affidavit evidence conflicted on key matters. The Court of Appeal explained that, while alleged child abduction cases need to be dealt with expeditiously, there also needs to be careful assessment of the circumstances. It is important that “procedural fairness and natural justice are not sacrificed for efficiency and expediency”, especially when jurisdictions “do not share obligations under the Hague Convention”. Overall, the mother was denied procedural fairness and natural justice in the way the judge determined the child’s habitual residence, the assessment of the risk of serious harm, and the decision to order the child to return to Pakistan without considering whether the order was in the child’s best interests.

The parties disagreed on the issue of the child’s habitual residence, the reason for the child’s stay in Pakistan, and the eventual trip back to Ontario. The motion judge concluded that the child was habitually resident in Pakistan solely based on conflicting affidavit evidence and declined jurisdiction under section 22 of the Children’s Law Reform Act. On appeal, however, the Court found that the judge was not in a position to assess credibility and choose one party’s account over the other. Instead, the judge was required to permit the parties to expand the evidence and resolve the conflict.

The decision in Office of the Children’s Lawyer v. Balev makes it clear that determining habitual residence requires considering “relevant links and circumstances” including the parental intention. However, in this case, the judge did not test the mother’s evidence and did not have the necessary evidence to determine the issue.

Analysis of Serious Harm Should Also Consider Family Violence

Even if the judge was correct that the child’s habitual residence was Pakistan, the Court determined that the allegations of serious harm required a hearing before concluding that the mother did not meet the onus of showing there was a serious risk of harm to child if she was returned to Pakistan. The Court explained that when a child is taken to another country, it will generally be in the child’s best interests to return them to the country of their habitual residence, unless “there are exceptional circumstances that justify Ontario taking jurisdiction”. In F. v. N., Justice Kasirer stated that in these cases “the presumption in favour of the jurisdiction of habitual residence must give way to the imperative of protecting a child when serious harm is made out”.

Here, the mother alleged the child would suffer serious harm if returned to Pakistan. She claimed her relationship with the father involved physical and emotional abuse, that the father refused to provide the child with the necessities of life, and that he threatened to take the child. While the trial judge found the mother’s allegations of abuse could not amount to serious harm to the child, the judge erred in finding the violence directed at the mother was irrelevant to the risk of serious harm to the child. Previous cases have held that harm to a primary caregiver is a risk to the child. Moreover, the Children’s Law Reform Act requires family violence to be considered in an analysis of the child’s best interests. Consequently, a hearing was required to evaluate the mother’s serious allegations.

Mother’s Appeal Allowed; Matter Returned to Lower Court for Evidentiary Hearing

The Court of Appeal also considered section 40 of the Children’s Law Reform Act and concluded that even if Pakistan was the correct habitual residence of the child, and if the court had no basis to assume jurisdiction on the grounds of a serious risk of harm existed if returned to Pakistan, the Court still had to consider what order was in the child’s best interests. Unlike in Hague Convention cases, section 40 of the Children’s Law Reform Act does not require the Court to order that the child be returned to Pakistan. The judge failed to consider the options based on the child’s best interests, and this was another area where additional consideration on a full evidentiary record was required.

Accordingly, the mother’s appeal was allowed with the matter returned to the lower court for an evidentiary hearing.

Substantive Hearing Needed to Assess Conflicting Evidence

This case highlights the responsibility of judges to ensure procedural fairness and natural justice when deciding issues in cases where the wrongful removal of a child is alleged. A proper evidentiary hearing may be needed to assess key facts and allegations prior to an order being made, especially when the parties’ evidence conflicts.

Contact the Lawyers at NULaw in Toronto for Comprehensive Advice on Complex Parenting Matters

At NULaw, our experienced family lawyers understand that separation, divorce, and other family law disputes can be emotionally, physically and financially taxing. If you are contemplating a separation or divorce, it is crucial to consult with a trusted family lawyer to understand your rights, responsibilities and options, in order to formulate a strategy that meets your needs moving forward, particularly when children are involved. To speak with a member of our team regarding your family law matter, contact us online or call us at 416-481-5604.

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