



COURT OF APPEAL FOR ONTARIO

CITATION: Zafar v. Saiyid, 2018 ONCA 352

DATE: 20180411

DOCKET: C64581

Strathy C.J.O., Roberts and Paciocco JJ.A.

BETWEEN

Mahmud Zafar

Applicant
(Respondent in Appeal)

and

Qurratul Ain Saiyid

Respondent
(Appellant in Appeal)

Anser Farooq, for the appellant

Robert McQueen, for the respondent

Heard: March 28, 2018

On appeal from the orders of Justice G.D. Lemon of the
    Superior Court of Justice, dated September 13, 2017 and November 7, 2017, with
    reasons reported at 2017 ONSC 5119 and 2017 ONSC 6688.

REASONS FOR DECISION

[1]

The present appeal is from the orders of the application judge requiring
    the appellant mother to return the parties children to their habitual
    residence in England for custody and access to be determined there. The orders
    were made pursuant to Article 12 of the
Convention on the Civil Aspects of
    International Child Abduction
(Hague Convention), as incorporated in s.
    46(2) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12. Under
    Article 12 of the Hague Convention, where the court determines that a child has
    been wrongfully removed or retained, the court shall order the return of the
    child forthwith.

[2]

The appellant also seeks to file fresh evidence about the current status
    of the children and of proceedings she has started in England. In our view, the
    fresh evidence meets all of the criteria for admission on this appeal:
Children's
    Aid Society of Toronto v. P.M.,
2015 ONCA 695 at para. 23.

[3]

The appellant and the respondent are married with two small children who
    were born in England but are also Canadian citizens. Up until the appellant
    brought them to Canada to visit her parents, initially with the respondents
    consent, the children resided in London, England.

[4]

On August 23, 2016, the appellant advised the respondent that their
    marriage was over and that she and the children would not be returning to
    England. The respondent brought an application under the Hague Convention for
    the return of the children to England.

[5]

During the Hague application hearing, the appellant conceded that the
    children were habitually resident in London, England. She argued against the
    return of the children primarily on the basis of Article 13(b) of the Hague
    Convention, arguing that the respondent poses a grave risk of physical and psychological
    harm to the children. The respondent denied these allegations.

[6]

The application judge declined to conduct a risk analysis in relation to
    the appellants allegations under Article 13(b) of the Hague Convention because
    of the parties conflicting affidavit evidence. He stated:

In a Hague application, I am not to determine best interests of
    the children; only jurisdiction.  In any event, on affidavits alone, I cannot
    determine who is telling the truth about Mr. Zafars conduct. That is a matter
    for the English courts.

[7]

As a result, the application judge ordered that the appellant return the
    children to London, England by December 1, 2017, failing which, the respondent
    would have sole custody of the children and could return to England with the
    children.

[8]

On November 27, 2017, the appellant obtained an order from this court staying,
    until the disposition of the appeal, the provisions of the application judges
    order requiring her return to England and giving sole custody to the respondent
    if the children do not return.

[9]

On December 17, 2017, the appellant returned voluntarily to London,
    England with her children.

[10]

According
    to the fresh evidence filed on this appeal, the appellant has commenced family
    law proceedings in England, asking, among other things, that she be permitted
    to return to Canada with the children. The hearing of that issue has been
    scheduled for May 10, 2018 on an urgent basis.

[11]

The
    main thrust of the present appeal is that the application judge made the
    following errors: he erred in awarding custody to the respondent as a
    consequence of the mothers breach of his order; he erred in ordering the
    appellant to return to England with the children; and he erred in declining to
    assess whether the grave risk of harm override provision in Article 13(b) was
    engaged.

[12]

If
    successful on this appeal, the appellant no longer seeks a new hearing of the
    respondents application but is content that the English courts decide the
    issues between the parties. However, the appellant is concerned that the errors
    in the application judges orders may prejudice her position in the English
    proceedings. To that end, she submits that her appeal is not moot.

[13]

We
    agree.

[14]

To
    award custody of the children to one parent as a consequence of the other
    parents failure to obey a court order is an error as it fails to consider or prioritize
    the childrens best interests.

[15]

Similarly,
    to the extent that he did so, the application judge was without jurisdiction to
    order the appellant to return to England with her children.

[16]

We
    also agree that the application judge erred in stating that he could not
    determine whether the children were at grave risk of serious harm and then
    delegating this matter to the English courts. Article 13(b) of the Hague
    Convention, requires the court to consider the possibility of grave risk of
    physical or psychological harm to the children arising from an order returning
    them to their country of habitual residence.

[17]

The
    appellant argued before the application judge that the threatening, abusive
    and intolerable behaviour towards the [mother] by the [father], and drinking
    and smoking habits of the [father] reflects inability to create a safe
    environment free of danger for the children. She further submitted that if the
    children are ordered to return to England she would have to return with them
    and she would be returning to a dangerous situation. The appellant alleges that
    the respondent is physically abusive, verbally abusive, and financially
    controlling. The respondent denied these allegations.

[18]

A
    grave risk of harm to a childs mother can establish a risk to the child as
    well:
Cannock v. Fleguel
, 2008 ONCA 758 at para. 41.

[19]

In
    our view, it was an error for the application judge to explicitly decline to
    decide whether he believed allegations that, if believed, could engage the
    protective function of the court to decline to order the childrens return.

[20]

Having
    found that the issue of risk could not be determined on the existing record of
    conflicting affidavit evidence, it was incumbent on the application judge to consider
    whether oral evidence was required to allow him to complete his risk analysis
    or whether he could make a decision based on the sufficiency of the record and
    the appellants evidentiary onus. He erred in doing neither and instead
    delegating the risk assessment to the English courts.

[21]

For
    these reasons, we conclude that the orders of the application judge must be set
    aside. As the issues between the parties, including the question of whether the
    appellant may return to Canada with her children, are now before the English
    courts, we do not order a new hearing of the respondents application in
    Ontario.

[22]

In
    the unusual circumstances of this case, we set aside the application judges
    order of costs and order that there be no costs of the application or the appeal.

G.R. Strathy
    C.J.O.

L.B. Roberts
    J.A.

David M. Paciocco
    J.A.


