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CUSTODY AND ACCESS - Courts - Jurisdiction

Thursday, September 10, 2020 @ 6:05 AM  

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Appeal by the mother from an order finding Ontario did not have jurisdiction under s. 23 the Children’s Law Reform Act to decide her custody claim because there was no risk of serious harm to the children and ordering the children returned to Kuwait. The mother came with the children to Canada without the father’s consent. On arrival in Canada, she sought refugee status for herself and the children. She claimed 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. 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 oldest child described his father as mean, angry and threatening. He described being hit with a belt and threatened with a hot iron. The application judge did not give much weight to his views because she found the child was influenced by his mother. The clinicians who interviewed the children provided evidence that their views were independent.

HELD: Appeal allowed. The application judge erred in her treatment of the children’s evidence which established a risk of serious harm. She discounted the children’s evidence on the basis that it was the product of the mother’s inappropriate influence despite uncontradicted evidence from three separate experts that the children’s views were in fact independent. She erred in not explaining why this expert evidence should be rejected. To reject uncontroverted evidence of independence without any explanation for why she believed the experts were misled or wrong was an error. The children would suffer serious harm if returned to Kuwait. Ontario therefore had jurisdiction under s. 23 to make a custody and access order. The application judge also erred in ordering the return of the children to Kuwait in the face of their asylum claim. Children were entitled to protection as they sought asylum. If, under the Children’s Law Reform Act, a child was ordered returned to a place from which asylum was sought, the child’s rights to asylum were lost.

M.A.A. v. D.E.M.E., [2020] O.J. No. 3240, Ontario Court of Appeal, M.L. Benotto, J.M. Fairburn and M. Jamal JJ.A., July 29, 2020. Digest No. TLD-September72020008