Mother Wins Appeal of Order Forcing her to Return to England or Lose Custody
The upcoming summer travel season makes the case of Zafar v. Saiyid particularly interesting since it involves a not-uncommon scenario of a separated parent taking children on holiday and then deciding never to come back. It illustrates only some of the complex judicial machinery that gets set in motion when a parent makes this kind of unilateral decision.
The mother and the two young children, who were Canadian citizens, had come to Canada from England for a summer holiday. The father had given his permission for their travel, and she was slated to return to England by a certain date.
Instead, while still on holiday the mother advised the father that the marriage was over and that she was staying in Ontario with the children. The father immediately filed an application under the Hague Convention, asking for an order for the children’s return. The Convention allows a court to order the return of a child who has been wrongfully removed or detained from the jurisdiction.
In terms of granting such an order the jurisdictional test under the Hague Convention centers mainly on the children’s “habitual residence”, which in this case was England. (This is unlike more substantive questions of custody, which under Ontario law focuses on the “best interests” of the children).
However, the Convention also allowed the mother to resist having to return the children on the basis that they were at risk of physical or psychological harm. She accused the father of being “threatening, verbally abusive, financially controlling” and of showing “intolerable behaviour towards the mother”, which she claimed deprived the children of a safe environment. The father denied these allegations outright.
Initially, the mother lost her bid to stay in Ontario. The lower court judge ordered her to return the children to England by December 1, 2018; if she did not, the father would be given sole custody.
The mother then obtained a stay of this order, and voluntarily returned to England where she applied for orders allowing her to formally relocate with the children to Canada. She also brought an appeal in Ontario on procedural grounds, claiming among other things that the lower court judge had been legally wrong to order her to immediately return to England, and to threaten to strip her of custody if she did not. She also claimed that the lower court judge had incorrectly failed to conduct a “risk analysis” about her allegations of psychological abuse on the basis that there was conflicting affidavit evidence on that point.
In hearing that appeal, the Ontario Court of Appeal concluded these were indeed mistakes on the part of the lower court judge. On the point of the order to return, the Appeal Court said:
To award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests.
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.
As for the conflicting affidavits as to the father’s psychological abuse, the lower court judge should have considered whether to allow the mother and father to each give oral evidence in the circumstances.
Collectively, these failures by the judge were tantamount to an error in law, which warranted the granting of part of the mother’s appeal in Ontario. (The remaining part, relating to whether the mother could return to Canada with the children, was still pending, with a hearing being scheduled on an urgent basis).
For the full text of the Appeal decision, see: