Motion judge erred in finding harm irrelevant to best interests of child
A mother was denied procedural fairness and natural justice when the Superior Court granted her former husband’s request to declare their child a habitual resident of Pakistan and order the child returned to that country, the Ontario Court of Appeal has ruled.
In Zafar v Azeem, 2024 ONCA 15, the mother came to Canada with her Canadian-born child after her husband brought a case in Pakistan to take custody while he pursued a divorce. Justices Michal Fairburn, Katherine van Rensburg, and Benjamin Zarnett found that the motion judge had decided the issue with too little evidence. They set aside the orders and sent the matter back to the Superior Court.
The case under appeal unfolded in two hearings. The first determined it was urgent, scheduling the next hearing for approximately three weeks later. The mother opposed the request to expedite the hearing, arguing there was no urgency. Justice Fairburn wrote the reasons and said an expedited hearing in the circumstances was an error because “the affidavit evidence conflicted in key respects that required resolution.”
“Expediency and efficiency can never be at the expense of procedural fairness and natural justice,” says Michael Stangarone, a partner at MacDonald & Partners LLP in Toronto and lawyer for the mother.
In cases involving allegations of international child abduction, the court first determines whether the countries relevant to the case are party to the Hague Convention on the Civil Aspects of International Child Abduction. Hague Convention parties subscribe to the view that the interests of the children are the most important consideration in determining their custody.
Zafar v Azeem dealt with Pakistan, which has acceded to the convention. However, Canada has not acknowledged its accession, which meant that the terms of the convention were not applicable, and the Children’s Law Reform Act (CLRA) would determine the issues. Section 22 of the CLRA gives Ontario courts jurisdiction over children habitually resident in the province or meeting certain criteria. Under s. 23, even where s. 22 does not apply, a court may exercise jurisdiction if the child is in Ontario and would suffer serious harm if removed from the province. Section 40 gives a court discretionary power to order the return of a child to another country if they have been wrongfully removed.
“If you ensure procedural fairness and natural justice, then you're safeguarding the analysis under those sections,” says Stangarone. “There has to be a careful assessment of the evidence in order to reconcile key facts, and that is amplified in non-signatory cases because, under the Hague Convention, signatory countries are presumed equipped to deal with parenting disputes in the best interests of children.”
“This case sends a clear message that procedural fairness and natural justice must be safeguarded and ensured when dealing with alleged abduction cases because the stakes are so high in these cases, and they involve young children.
In Zafar v Azeem, 2024 ONCA 15, the parties were born and married in Pakistan, but their child was born in Canada and is a Canadian citizen. In 2021, the mother took the child to Pakistan to visit family. The mother said the plan was for her to return eventually, but the father said she had gone to live with her family because she was unhappy living in Canada.
The father filed for divorce with the Pakistani authorities. He and his lawyer informed the mother they had filed a court proceeding to gain custody of the child and prevent the child from being taken out of Pakistan.
The mother returned to Canada with the child and believed Canada was the proper jurisdiction to determine custody. She launched an application in Ontario asking the court to assume jurisdiction and grant her sole decision-making responsibility. The father filed an urgent motion in the Ontario Superior Court asking that the court decline jurisdiction and order the child returned to Pakistan. He was successful, and the Superior Court ordered the child returned to Pakistan within 14 days of its ruling.
The mother claimed the court made four errors, including that the summary process was procedurally unfair because it relied on affidavit evidence when there was “significant conflict” between the parties’ versions of events. She also argued the court improperly applied CLRA in determining that no serious harm would come to the child from the return to Pakistan.
The mother and father disagreed over the habitual residence of the child. The father said it was Pakistan, while the mother said their presence in Pakistan was meant to be temporary. Fairburn said the motion judge ruled the child was habitually resident in Pakistan “[b]ased solely on the conflicting affidavit evidence and without making any credibility findings.” The motion judge was in no position to choose one account over the other and should have had the parties enlarge the evidentiary record to resolve the conflict, said Fairburn. She added that the motion judge’s analysis overlooked the length of time the child was in Canada and the conflict between the parties over the intention of the trip to Pakistan – whether it was a move or a visit.
Fairburn said determining parental intention was central to determining habitual residence, and the motion judge lacked the evidence to do so.
“Typically, in cases where the Hague Convention doesn't apply, the CLRA forms a complete code to the determination habitual residence,” says Tiffany Guo, an associate at MacDonald & Partners LLP who also acted for the mother. But in Zafar v Azeem, the court analyzed the “settled intention of the parties,” she says. “That is sending messaging that settled intention is still important for the determination of habitual residence even under the CLRA.”
The mother had also told the court she was the victim of physical, sexual, financial, verbal, and emotional abuse by the father. Fairburn found the motion judge erred in concluding that this alleged abuse was irrelevant to the child’s risk of serious harm. She noted that in 2021, the province amended the Divorce Act and the Children’s Law Reform Act to add a requirement that courts consider family violence when assessing the child’s best interests. Fairburn said that a “proper evidentiary hearing” was necessary to evaluate the mother’s allegations and the impact of domestic violence on the child’s best interests.
Had the court been correct in finding that the child’s habitual residence was Pakistan, Fairburn said the motion judge was also required to consider what further order was in the child’s best interests, which would have included the child remaining in Ontario while the proceedings occurred in Pakistan.
The court set aside the order to return the child to Pakistan and remitted the matter to the Superior Court for an evidentiary hearing to assess the child’s habitual residence and the risk of serious harm. If the court opts not to exercise jurisdiction, Fairburn said it must consider whether it is in the child’s best interests to remain in Canada or return to Pakistan while a court in the latter country deals with the issue. The court also set aside the order recognizing the Pakistani marriage.
