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CUSTODY AND ACCESS - Best interest of children - Conduct of parents - Risk of future harm

Monday, May 14, 2018 @ 12:56 PM  

Lexis Advance® Quicklaw®
Appeal by the mother from orders requiring her to return the parties' children to their habitual residence in England for custody and access to be determined there. The parties were the married parents of two young children. The children were born in England, but also had Canadian citizenship. Until the mother brought the children to Canada for a visit, which initially received the father's consent, the children had resided in England. In August 2016, the mother advised the father that the marriage was over and that she would not be returning to England with the children. As a result, the father brought an application to have the children returned to England. The mother conceded that the children were habitually resident in England but argued against the return of the children to England primarily on the basis that the father posed a risk of harm to the children. The judge refused to perform a risk analysis because the affidavit evidence conflicted, and he ordered the mother to return the children to England by a certain date, failing which the father was granted sole custody of the children and could return them to England. The mother obtained a stay of the order and appealed. She had voluntarily returned to England with the children. The mother sought to file fresh evidence about the status of the children and the proceedings in England. She had commenced a proceeding in England asking, among other things, that she be permitted to return to Canada with the children. The mother alleged that the application judge erred in awarding custody to the father as a consequence of the mother's breach of the order, erred in ordering the mother to return to England with the children and erred in declining to conduct a risk analysis. The mother was content to let the English court decide the issue between the parties but was concerned that the order could prejudice her position in the English proceedings.

HELD: Appeal allowed. To award custody of the children to one parent as a consequence of the other parent's breach of a court order was an error, as it failed to consider and prioritize the best interests of the children. In addition, the judge lacked jurisdiction to order the mother to return to England with the children. The judge also erred in concluding that he could not determine whether the children were at risk and delegating that task to the English court. Having found that the issue of risk could not be determined on the conflicting affidavit evidence, it was incumbent upon the judge to consider whether oral evidence was required to allow him to complete the risk analysis or whether he could make a decision on the evidentiary record and the mother's evidentiary onus. Doing neither was an error.

Zafar v. Saiyid, [2018] O.J. No. 1990, Ontario Court of Appeal, G.R. Strathy C.J.O., L.B. Roberts and D. Paciocco JJ.A., April 11, 2018. Digest No. TLD-May142018002