On July 29, 2020 the Ontario Court of Appeal (ONCA) made an important determination: Ontario’s family courts cannot grant a custody return order for children who are claiming asylum while their claim is still being processed. Children making refugee claims are therefore safe from being returned to a parent in their home country until their claim is decided.
The case of M.A.A v D.E.M.E (ONCA) highlights the intersection between family law and refugee law, ultimately upholding that children are entitled to remain in Canada protection as they seek asylum.
The decision of the family court
M.A.A v D.E.M.E (ONCA) follows an Ontario family court decision which ordered the return of three children (now 4, 7 and 11) to their father in Kuwait. The children’s mother brought the children to Canada in 2018 and sought refugee status—alleging that she and the children faced a serious risk of harm from their abusive father. These allegations are denied by the father who claims that the mother wrongfully kidnapped the children.
The basis for the decision was section 40(3) of Ontario’s Children’s Law Reform Act (CLRA) which allows a court to make a custody return order when it believes that a child is being wrongfully retained in Ontario. The court, believing the children were wrongfully being held in Ontario, ordered their return to the father.
The mother, alternatively, tried to ensure that her children remained in Ontario. She argued, in line with section 23 of the CLRA, that they would, on a balance of probabilities, suffer serious harm if returned to the father.
Main issues of appeal
The primary issues discussed in M.A.A v D.E.M.E (ONCA) were:
(1) Did the family court err in its serious harm analysis under section 23 of the CLRA; and
(2) What is the effect of the refugee claim on the father’s return application made under section 40 of the CLRA.
The children would likely suffer serious harm
Concerning the first issue, ONCA found that the family court did err in its analysis by rejecting three reports from The Office of the Children’s Lawyer without explanation. These reports established that the children would likely suffer serious harm if returned to Kuwait.
The reports showed that the children believed they would be harmed by their father, independent of their mother’s influence. The family court had previously given little weight to the children’s evidence, stating that their accounts had been influenced by their mother.
Importantly, the court had also established that it was able to undertake a section 23 analysis prior to the determination of a refugee claim as a delay would not be in the best interest of the children who were anxious and unsure of their immediate future.
Children seeking asylum cannot be subject to a family court return order
ONCA additionally determined that children cannot be subject to a return order under section 40 of the CLRA if they have a pending refugee protection claim. This finding was supported by the United Nations High Commissioner for Refugees (UNHCR), the Canadian Association of Refugee Lawyers (CARL), and Amnesty International, all of whom intervened in the case.
This determination showcases the strength of the principle of non-refoulement in section 115(1) of Canada’s Immigration and Refugee Protection Act.
Non-refoulement protects a refugee from being removed from Canada to a country where they will face persecution for reasons of race, religion, nationalist, membership in a particular social group or political opinion or at risk of torture or cruel and unusual punishment.
Non-refoulement applies both to Convention refugees and also to those who have pending refugee protection applications—whose status is yet to be determined. Accordingly, the principle was found to apply to the three children.
ONCA reasoned that this decision:
(a) Offers the children the protection and rights they deserve in accordance with the Convention on the Rights of the Child, to which Canada is a signatory; and
(b) Ensures that the children do not lose their rights to seek asylum in Canada, which would be lost upon return (as they could not continue a refugee claim from their home country).
As an aside, it is important to note that Kuwait is not a signatory to the Hague Convention, an international treaty which, in part, offers protection against child abduction. While this case upheld the principle of non-refoulement over a return order made under the CLRA, whether the principle will be upheld over a return order made under the Hague Convention, ONCA states, will be left for another day.
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