



COURT OF APPEAL FOR ONTARIO

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

DATE: 20200729

DOCKET: C68182

Benotto, Fairburn and Jamal
    JJ.A.

BETWEEN

M.A.A.

Respondent
(Applicant/Respondent on Cross-Application)

and

D.E.M.E.

Appellant
(Respondent/applicant on Cross-Application)

and

The Office of the Childrens Lawyer

Counsel for the Children

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 Childrens 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

Heard: July 7, 2020 by video conference

On appeal from the order of Justice Lucy K. McSweeney
    of the Superior Court of Justice, dated February 19, 2020, with reasons
    reported at 2020 ONSC 1109.

Benotto J.A.:

[1]

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 fathers consent. On arrival in Canada, she sought
    refugee status for herself and the children. She claims 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.

[2]

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
Childrens
    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(ren) would suffer serious harm if removed from Ontario.

[3]

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.

[4]

The mother appeals. She submits that the
    application judge erred in her determination of serious harm or, in the
    alternative, that the application should have been adjourned pending a
    determination of the refugee status. The mothers appeal is supported by the Office
    of the Childrens Lawyer (OCL) and the four interveners:
United Nations High Commissioner for Refugees (UNHCR),
    Canadian Association of Refugee Lawyers (CARL), Amnesty International Canada,
    and Barbra Schlifer Commemorative Clinic.


[5]

I conclude that the application judge erred in her
    treatment of the childrens evidence provided through the OCL. That evidence establishes
    a risk of serious harm. Ontario therefore has jurisdiction under s. 23 to make
    a custody and access order. I also conclude that it was an error to order the
    return of the children to Kuwait in the face of their asylum claim.

FACTS

[6]

The mother and father are Jordanian citizens. They
    married in Kuwait on May 30, 2008, where they continued to live with their
    three children: a son I.A., born May 2009; a son A.A., born May 2013; and
    daughter H.A., born December 2015.

[7]

The family appeared to have a successful life in
    Kuwait. Both parents worked, the mother as a senior human resources executive
    and the father for various financial institutions and a car resale business.
    The boys attended the British School of Kuwait. The family socialized with
    extended family and friends and participated in community and extracurricular
    activities with the children.

[8]

On March 14, 2018, an incident occurred which
    led to the separation of the parties. The mother alleges that she was attacked
    by the father in front of the children. She says 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 and advised the parties not to bring charges.
    The father denies the allegations.

[9]

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.

[10]

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 fathers consent, nor did she advise him in advance.

[11]

On October 3, 2018, the father commenced an
    application in Ontario under the
CLRA
, seeking the return of the
    children to Kuwait.

[12]

The mother filed a cross-application
    requesting that the court assume jurisdiction for custody and access. She
    submitted 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 cannot protect her
    or the children in a meaningful way. An affidavit from a  legal expert on
    Sharia law and statutory law in Kuwait was filed.

[13]

The application judge appointed the OCL and
    requested a Voice of the Child Report for the oldest boy, I.
[1]
The child described his father
    as mean, angry, and threatening. He described being hit with a belt and
    threatened with a hot iron. He said that while in Kuwait, his mother would
    protect him from his father, that his father would threaten to hurt him and that
    when he did this, his mother would get in his way thereby protecting him.

[14]

Mary Polgar, a Clinical Investigator with the
    OCL, interviewed I. and his brother A. Both children told her that they saw
    their father grab their mother on March 14, 2018. When describing the event, A.
    grabbed and squeezed his own mouth. I. said he did not know if it was choking
    or something else bad. The children were also interviewed by Mahesh Prajapat of
    the OCL.

[15]

Dr. Vincent Murphy, a child psychologist,
    conducted an assessment of I. He concluded that I.s logical-analytical and holistic
    problem-solving skills are at or slightly above the level of an average-age peer.
    Further, I. was fairly consistent in what he had to say, both about fear of
    his father abusing him were he to return to Kuwait, and in his desire to stay
    in Canada.

[16]

The father strenuously denied all allegations of
    abuse. He tendered evidence from seven witnesses including the childrens nanny
    that he was not a violent person, that they never witnessed abuse, and that he
    was a loving father. The childrens doctor wrote a letter confirming that he
    had never seen any signs of abuse. The father claimed that the mother only
    returned to Canada to be with her family and that the allegations of abuse are
    a ruse.

[17]

The application judge had originally planned to
    await the outcome of the refugee proceedings. However, in February 2020 when that
    determination had not been made, she released her decision.

DECISION OF THE APPLICATION JUDGE

[18]

The application judge addressed the requirements of s. 23 of the
CLRA
,
which authorizes the court to assume
    jurisdiction to make or to vary an order in respect of the custody of or access
    to a
child if the court is satisfied that the child would,
    on the balance of probabilities, suffer serious harm if the child is removed
    from Ontario.

[19]

The application judge concluded that the mother had not established
    that the children would suffer serious harm. She d
id
    not accept the mothers allegations of abuse. She found that:

When
    cross-examined on her affidavits, [the mothers] testimony was inconsistent,
    contradictory, and contradicted by other evidence, including other witnesses
    and her own documentary evidence. At times, she exaggerated her evidence. She
    omitted important details which did not serve her narrative. When challenged to
    provide detail, she was evasive and argumentative with counsel.

[20]

The application judges concerns included the
    fact that the mother had not mentioned the sexual violence before her testimony
    in court, nor did she mention the physical abuse of the children by the father.

[21]

The application judge further considered the
    submission that the Kuwaiti courts would be biased against her and concluded
    that the expert evidence did not support her contention that she would not be
    fairly treated in Kuwait.

[22]

With respect to the evidence of I., the
    application judge said:

I find I cannot
    give much weight to his views because they have been influenced by his mother.

She accepted I.s maturity for the
    purpose of considering his views but concluded that:

He wishes to
    remain in Canada because he wants to stay with his mother, his asthma is better
    here, and Canada is a peaceful place to live.

Relying on
Andegiorgis v. Giorgis
,
    2018 ONCJ 965, she determined that these reasons were not substantial and
    that:

An overall
    preference for Canada is not a factor to ground an assumption of jurisdiction
    by this court.

[23]

Since the application judge was not satisfied
    that the children were at risk of serious harm, she concluded that Ontario did
    not have jurisdiction. She then proceeded under s. 40 of the
CLRA
to
    order the return of the children to Kuwait.

[24]

With respect to the childrens refugee claim she
    stated:

The existence of a
    refugee claim or an ongoing hearing before the Refugee Protection Division does
    not require the court on a removal application to stay its process until the
    determination in the refugee process. Although not required by law, I did attempt
    to avoid concurrence of the refugee and
CLRA
proceedings in this
    application by granting an initial, and then subsequent, adjournment to permit
    the scheduled refugee hearing to conclude. The refugee hearing did not conclude
    in a reasonable time and I ultimately ruled that this hearing would be brought
    to conclusion.

POSITIONS OF THE PARTIES

[25]

The mother submits that the application judge
    erred in her credibility analysis of the mother in a number of ways including
    by employing unfounded myths about typical behaviour of a victim of sexual
    violence and by rejecting the expert evidence relating to family law in Kuwait.
    The error as to the credibility analysis then tainted the application judges consideration
    of the childrens evidence. In the result, she effectively gave no weight to
    the childrens evidence and failed to properly analyze the best interests of
    the children. Further, by ordering their return to Kuwait, she undermined their
    rights to have their refugee claim determined. The mother submits that the
    court has two options: adjourn the entire application until the childrens
    refugee status is determined; or consider the risk to the children and accept
    that Ontario has jurisdiction.

[26]

The OCL submits that given the uncontroverted
    expert and social work evidence that the children face the risk of serious
    emotional, psychological, and physical harm if returned to Kuwait, and the
    expert assessment that their evidence was independent of the mothers
    influence, the application judge was compelled to accept that evidence. The
    failure to do so is a reversible error. The OCL also submits that the entire
    matter  including the consideration of serious harm  should have been
    adjourned until the refugee status is determined.

[27]

The father submits that the application judges
    findings as to credibility are entitled to deference and it was open to her to treat
    the childrens evidence as she did. There has been, he submits, a significant
    delay already during which time the father has been unable to be with his
    children. He submits that it would have been an error to adjourn the return
    order simply because the refugee claim has not yet been determined. (To date,
    the delay has been 27 months). The father requests that  application judges
    return order be respected.

POSITIONS OF THE INTERVENERS

United Nations High Commissioner for Refugees
    (UNHCR
)

[28]

UNHCR submits that the application judge erred
    by ordering the children returned while there is an outstanding refugee
    application. It submits that the provisions of the
CLRA
must be informed by principles of non-refoulement set
    out in the 1951
Convention relating
to
    the Status of

Refugees
,

July 28, 1951, 189 U.N.T.S. 150
    (the 1951 Refugee
Convention).
An order requiring the
    return of the children before a full review of the merits of the asylum claim
    violates the
Charter
rights of the children, Canadas obligations
    under the 1951 Refugee Convention and the
Convention on the Rights of the
    Child
.

Canadian Association
    of Refugee Lawyers (CARL)

[29]

CARL submits that a child who is subject to
    return proceedings should benefit from the assessment of their refugee claim
    prior to the return matter proceeding. The Refugee Protection Division of the
    Immigration and Refugee Board of Canada is a specialized tribunal with institutional
    expertise, and it is best situated to conduct this inquiry.

Amnesty International Canada (Amnesty)

[30]

Amnesty submits that Canadian courts must
    interpret domestic law (here the
CLRA
) in conformity with Canadas
    intersecting international obligations including

the
Convention on the Rights of the
    Child.
Refugee claimants should not be ordered returned to a country
    before their claim for refugee protection has been determined. The issuing of a
    family law return order before the determination of the refugee claim is an
    error.

Barbra Schlifer Commemorative Clinic (the
    Clinic)

[31]

The Clinic submits that when assessing the
    credibility of evidence to determine the risk of harm on a balance of
    probabilities under s. 23 of the
CLRA
, the Family Court should
    consider the legal framework of the
Act
in its entirety and read the
    section through a gender-based violence lens, which would include the harmful
    effects of domestic violence on children.

NEW EVIDENCE AND ITS ADMISSIBILITY

[32]

All parties have filed new evidence.
[2]


[33]

When the welfare of a child is at stake the
    courts adopt a flexible approach to the admission of new and/or fresh evidence
    consistent with the need for up-to-date information on children and matters
    relevant to their best interests:
H.E. v. M.M.
,
2015 ONCA 813, 393 D.L.R. (4th) 267, at
    paras. 70-75. I have considered and rely on the new evidence.

[34]

Since the removal order was granted, the mother
    has been convicted in Kuwait of kidnapping the children. She was ordered to pay
    a fine and to be on good behaviour for a year. The father now has two court
    orders in Kuwait: an order granting him custody of the children and an obedience
    order. The obedience order obligates the mother to enter into submission to
    her husband and obey her husband.  The father says that he obtained the
    orders so that the mother would have a home to come back to.

[35]

Meanwhile, Dr. Murphy has met with the children
    again.  He met with I. more than once and reported that his anxiety is
    heightened. I. does not see a scenario where he can be in Kuwait and be safe
    from his father. I. has experienced an increase in physical complaints
    associated with anxiety, most notably insomnia, nightmares, lack of appetite,
    and gastrointestinal issues.

[36]

The OCL also tendered new evidence in the form
    of a Clinical Panel members affidavit stating that when she informed I. of the
    courts decision that he return to Kuwait, he spontaneously and powerfully
    responded NO, asking to speak to the judge. When advised that he might have
    to live with his father, his response was, do they not understand that my dad
    hit me and did bad things to me?

ISSUES

[37]

These 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.

ANALYSIS

(1)

Serious harm under s. 23

[38]

Child abductions (also called wrongful
    removals or wrongful retentions) can greatly harm children and seriously disrupt
    relationships with parents. Canada is a signatory to an international agreement
    entitled the
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
)
. The
Hague

Convention
aims to return children to the country where they
    are classed as Habitually Resident based on the belief that the courts in the
    country of habitual residence are generally best-placed to deal with the issues
    of where and with whom the child should live. The
Hague

Convention
is incorporated into Ontario law through s. 46 of the
CLRA
. With respect to
    non-signatory countries, the
CLRA
applies and reflects the
Hague

Conventions
goals of discouraging child abductions by confining
    Ontario jurisdiction over custody to limited circumstances.  This is one of
    those circumstances.

[39]

The legislature and the courts are alive to the potential
    damage to childrens well-being caused by abductions and seek to discourage
    self-help attempts by parents in custody disputes. At the same time, even in
    the face of a wrongful removal from another jurisdiction, s. 23 of the
CLRA
carves out an exception 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.

[40]

The threshold for engaging the harm
    exception differs under the
CLRA
and under the
Convention
:
Ojeikere
    v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d)
    561, at paras. 111-114
.

[41]

Here,
    the father seeks a return of the children to their habitual residence of Kuwait,
    which is not a signatory to the
Hague Convention
.
    The
CLRA
alone applies.

[42]

Section
    23 sets out a serious harm exception to the limits on Ontarios jurisdiction to
    make custody and access orders established by ss. 22 (jurisdiction) and 41
    (enforcement of extra-provincial orders):

Serious harm to child

23
Despite sections 22 and 41, a court may exercise its jurisdiction to
    make or to vary an order in respect of the custody of or access to a child
    where,

(a) the child is physically present in
    Ontario; and

(b) the court is satisfied that the child
    would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the
    person legally entitled to custody of the child,

(ii) the child is returned to the custody
    of the person legally entitled to custody of the child, or

(iii) the child
    is removed from Ontario.

[43]

This court has determined that the serious
    harm analysis under the
CLRA
is less stringent than the intolerable
    situation test under the
Hague Convention.
Laskin J.A. came to this
    conclusion in
Ojeikere
, at paras. 59-61 because of the different
    wording used in the
CLRA
and also:

because under
    the preamble to the
Convention
all signatories accept and
    are firmly convinced that the interests of children are of paramount
    importance in matters related to their custody. Signatories have accepted this
    principle and its enforcement by their agreement to adhere to their reciprocal
    obligations under the
Convention.
In
Hague Convention
cases
    Ontario courts can have confidence that whatever jurisdiction decides on a
    childs custody it will do so on the basis of the childs best interests.
    Ontario courts cannot always have the same confidence in
s. 23
cases  Some non-signatory countries
    may do so; others may not.

[44]

In
Ojeikere
,
Laskin J.A. took a holistic approach to the determination
    of serious harm and concluded that, based on a combination of factors, the
    children were at risk. He considered: (i) the risk of physical harm; (ii) the
    risk of psychological harm; (iii) the views of the children; and (iv) the
    mothers claim that she would not return to the habitual residence even if the
    children were required to do so.

[45]

Here, 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 childrens evidence on the basis that it was the product of the
    mothers inappropriate influence. She made this assessment in the face of
    uncontradicted evidence from three separate OCL experts that the childrens
    views were in fact independent. She did not explain why this expert evidence
    should be rejected. This was an error.

[46]

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 childs view.

[47]

The two older children (aged nine and five at
    the time of their arrival in Canada) were interviewed on numerous occasions to
    assist the court in ascertaining their views. The youngest child was also
    interviewed. In total, I. was interviewed on at least nine separate occasions:
    twice by an OCL caseworker who prepared a Voice of the Child Report, four times
    by an OCL clinical investigator, once by a psychologist, and at least twice by
    the Peel Childrens Aid Society.

[48]

The oldest child I. said he had been hit by his
    father with a belt. The belt had a buckle. He was also frequently threatened
    with the belt and with a hot iron. He was afraid when his father was angry and
    anxious because his grandfather knew, and yet the abuse continued. His mother
    was his protector, but she could not stop it. He witnessed the events of March
    14, 2018. He said that his mother fell on the couch and his father tried to do
    something to her. His grandmother and two uncles were there and tried to
    defend his mother. He saw his father grab his mothers face. Fear of his father
    was the main reason for not wanting to return to Kuwait. His fathers violence was
    like a nightmare.

[49]

A., then age four, was aware of the conflict
    between his parents. He said that his father grabbed his mothers mouth and
    blood came out. He said he was scared and tried to get a key to leave. He said
    that if his mother was going to go  back to Kuwait he would lock the door so
    she cant go.

[50]

The application judge did not address the
    childrens evidence about violence in the home, nor did she address their fear
    of the father. She reframed their evidence as a mere preference to remain in Canada
    and mentioned in passing I.s asthma relief. She gave little weight to the
    childrens evidence because they have been influenced by [their] mother.

[51]

Crucially, without explanation, the application
    judge rejected the uncontradicted expert evidence of Dr. Murphy, Mary Polgar,
    and Mahesh Prajapat supporting the independence of the childrens views. While
    it was open to her to reject the mothers testimony and conclude that the
    mother may have tried to influence the childrens views, to reject the three experts
    evidence that the childrens 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 cannot stand.

[52]

The clinicians who interviewed the children
    provided evidence that their views were independent.

[53]

OCL clinician Mary Polgar testified that I.
    spoke with a clear, strong, and independent wish to remain in Canada. I. told
    her that no one told him what to say, that his feelings were his own.

[54]

This was supported by child psychologist Dr.
    Murphy who said of I.:

He was fairly
    consistent in what he had to say, both about his fear of his father  and his
    desire to stay in Canada  He talked about how hard it was when his father hit
    his mother.

[55]

Dr. Murphy assessed I.s ability to make
    independent judgments as an individual in his first assessment of March 2019.
    His assessment included factors consistent with those discussed in
A.C. v.
    Manitoba

(Director of Child and Family Services),
2009 SCC 30, [2009]
    2 S.C.R. 181, at paras. 82, 84, 86, 87 and 88 about the weight to be given to a
    childs views. He met I. three times and assessed issues of influence and
    honesty, with reference to his past assessment of independence. In terms of
    assessing veracity, using clinical assessment tools, Dr. Murphys conclusions
    continue to support that I. is honest, makes his own judgments, and is genuine
    in his accounts and his expressed fear of his father. Dr. Murphy also stated
    that, although on the surface I. presents as confident and outgoing, he is
    suffering a significant level of anxiety due to the potential return to Kuwait.
    He also feels some measure of responsibility to shield and/or comfort his
    younger siblings, all the while being in a state of fear.

[56]

The
    application judge said she could not put much weight on the childrens evidence
    because of the mothers influence. In so concluding, she presumably relied on
    the father and his counsels bald assertion that the children had been coached as
    well as her negative assessment of the mothers credibility. What she did not
    do was offer any explanation as to why she rejected the uncontested expert
    evidence. This evidence involved assessments of independence put forward by
    three separate experts who actually met with the children at different points
    in time over a long period and whose expertise was directly focused on the
    issue of whether the childrens views were their own. The experts said that they
    were.

[57]

Judges
    are encouraged to probe and engage with expert evidence. They need not accept
    what an expert says simply because the witness is an expert. But to reject
    uncontroverted evidence of independence without any explanation for why she
    believed the experts were misled or wrong was an error.

[58]

All of the
Ojeikere
factors are present
    here. There is a risk of physical and psychological harm, the childrens views
    are clear and  considering the new evidence including the obedience order 
    the mother cannot realistically return to Kuwait. She has been the primary caregiver
    since birth and the children would likely lose their primary caregiver if
    forced to return to Kuwait. (The fathers statement that he would not enforce the
    custody order or the obedience order offers little reassurance).

[59]

On the evidence before this court, I am
    satisfied on the balance of probabilities that the children would suffer serious
    harm if returned to Kuwait. The Ontario court may exercise its jurisdiction to
    make custody and access orders for these children.

[60]

I now turn to the issues raised with respect to
    the refugee claim.

(2)

Effect of the refugee claim on the application

[61]

The principle of
non-refoulement
[3]

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
, S.C. 2001, c. 27, which provides:

115

(1)
A protected person or a person who is
    recognized as a Convention refugee by another country to which the person may
    be returned shall not be removed from Canada to a country where they would be
    at risk of persecution for reasons of race, religion, nationality, membership
    in a particular social group or political opinion or at risk of torture or
    cruel and unusual treatment or punishment.

[62]

Canada has ratified both the 1951 Refugee Convention
    and the
Protocol relating to the Status of Refugees
. In
Suresh v.
    Canada (Minister of Citizenship and Immigration)
,
2002 SCC 1
, [2002]
    1 S.C.R. 3, at para.
72
,
    the Supreme Court explained that the
Refugee Convention
. . .
    expresses a profound concern for refugees and its principal purpose is to assure
    refugees the widest possible exercise of  fundamental rights and freedoms.

[63]

As submitted by CARL and UNHCR, 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.

[64]

If, under the
CLRA
, a child is ordered
    returned to a place from which asylum is sought, the childs 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:
Immigration and Refugee Protection Act
, at ss.
    96 and 101(1)(c)).

[65]

Further, art. 22 of
the
Convention on the Rights of the Child
provides:

States Parties shall
    take appropriate measures to ensure that a child who is seeking refugee status
    or who is considered a refugee in accordance with applicable international or
    domestic law and procedures shall, whether unaccompanied or accompanied by his
    or her parents or by any other person, receive appropriate protection and
    humanitarian assistance in the enjoyment of applicable rights set forth in the
    present Convention and in other international human rights or humanitarian
    instruments to which the said States are Parties.

[66]

I adopt the reasoning of the High Court of
    Justice of England and Wales in
F.E. v. Y.E.
,
[2017] EWHC 2165 (Fam), which held at
    para. 17:

Approaching the
    matter from first principles I have no hesitation in concluding that where a
    grant of asylum has been made by the Home Secretary it is impossible for the
    court later to order a return of the subject child under the 1980 Hague
    Convention. Equally, it is impossible for a return order to be made
while an asylum claim is pending
. Such an order would
    place this country in direct breach of the principle of non-refoulement. It is
    impossible to conceive that the framers of the 1980 or 1996 Hague Conventions
    could have intended that orders of an interim procedural nature could be made
    thereunder in direct conflict with that key principle. [Emphasis added.]

[67]

This same reasoning applies to a potential
    return order under s. 40(3) of the
CLRA
.

[68]

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.

[69]

The OCLs submissions (and the mothers
    alternate submission) go further to suggest that the
entire application
,
including the mothers 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. I disagree for three reasons.

[70]

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. The
    section reads:

40.
Upon application, a court,

(a) that
    is satisfied that a child has been wrongfully removed to or is being wrongfully
    retained in Ontario; or

(b) that
    may not exercise jurisdiction under section 22 or that has declined
    jurisdiction under section 25 or 42,

may do any
    one or more of the following:

1. Make
    such interim order in respect of the custody or access as the court considers
    is in the best interests of the child.

2
. Stay the application subject to,

i. the
    condition that a party to the application promptly commence a similar
    proceeding before an extra-provincial tribunal, or

ii.
    such other conditions as the court considers appropriate.

3. Order a party to
    return the child to such place as the court considers appropriate and, in the
    discretion of the court, order payment of the cost of the reasonable travel and
    other expenses of the child and any parties to or witnesses at the hearing of
    the application.

[71]

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.

[72]

A return order must not be made under s. 40(3) in
    the face of a pending refugee claim. This is consistent with the submissions of
    Amnesty, CARL, and the UNHCR, all of whom stressed that it was the execution of
    the
removal order under s. 40(3)
that extinguishes the refugee claim. (I would leave 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).

[73]

Second, the OCL submits 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. In
A.M.R.I
.
v. K.E.R.
, 2011 ONCA 417, 106 O.R. (3d) 1, this court held that, in
    the
Hague

Convention
context, refugee status gives rise to a
    rebuttable presumption of a grave risk of harm on return to the childs
    habitual residence. While
A.M.R.I
. concerned the
Hague

Convention,
the rebuttable presumption would also apply in contemplating a return to a
    non-signatory country in the face of refugee status.

[74]

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.

[75]

The OCL is concerned that in the face of a pending refugee claim a
    court might, as here, conclude that it is not satisfied as to serious harm
    under s. 23 and the rebuttable presumption would be lost. In other words, if
    the court is not satisfied that the child would, on the balance of
    probabilities, suffer serious harm as required by s. 23, the court would not exercise
    its jurisdiction. This, it is suggested, would render unavailable the
    rebuttable presumption of harm for the purposes of s. 23 articulated in
A.M.R.I
. when the child ultimately
    qualifies as a refugee. I do not share this concern.

[76]

When the issue is potential harm to children, the
    courts must always be guided by the childrens 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 childs new status as a refugee.

[77]

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,
A.M.R.I.
requires a fundamental shift in
    the courts 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.

[78]

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.

[79]

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 demonstrates why. The
    new evidence describes that the children are anxious, exhibiting physical
    symptoms, and unsure of their immediate future. A delay is not in their best
    interests.

DISPOSITION

[80]

I have concluded that the evidence establishes
    that the children would, on a balance of probabilities, suffer serious harm if
    returned to their habitual residence of Kuwait. Ontario therefore may and
    should exercise jurisdiction to determine custody and access.  I have also
    concluded that it was an error to order the return of the children pending the
    determination of their refugee claim.

[81]

I would therefore allow the appeal and order a
    custody and access hearing to proceed in the Superior Court of Justice as soon
    as possible. In accordance with the agreement between the parties, I would
    order the respondent father to pay the appellant mother costs fixed at $25,000
    inclusive of HST and disbursements.

Released: MLB JULY 29 2020

M.L.
    Benotto J.A.

I
    agree. Fairburn J.A.

I
    agree. M. Jamal J.A.





[1]
A Voice of the Child Report presents the views and preferences of
    the child to represent the childs viewpoint in a family matter.



[2]
Since the evidence did not exist at the time of the decision under appeal,
    I prefer the term new instead of fresh evidence.



[3]
A principle that forbids a country from returning an asylum seeker
    to a country in which they would likely be in danger of persecution.


