Ontario Court Unconvinced that Sharia Laws Precluded Mother’s Fair Hearing in Kuwait
In a recent Ontario case, the parents had married in Kuwait in 2008, but separated in 2018 after an altercation involving physical and verbal abuse that was witnessed by their three children. The police were called. The father moved out that same day, and obtained order from a Kuwaiti court giving him 12 hours’ access each Friday. The mother countered by commencing proceedings for custody and alimony in keeping with Kuwaiti family law.
Shortly after – and without telling the father – the mother took matters into her own hands by leaving Kuwait with the children, using U.S. visas. Upon arriving in Canada, she made claims for refugee status, based on what she alleged was the father’s abusive conduct toward the children. She claimed that not having contact with him would prevent the risk of serious harm, and contended that it was in the children’s best interests not to return to Kuwait. Importantly, the mother also claimed that the legal system in that country did not protect women and children from domestic violence.
The father applied to the Ontario court for an order requiring the children to be returned to Kuwait. The key question was whether that court had jurisdiction to make an order concerning the children’s custody and access in the circumstances.
The Ontario court ruled that it did not. After examining numerous issues, it ordered that the children were to be sent back to Kuwait.
First of all, the court noted that its authority over these children was already tenuous at best: Kuwait was not a signatory to the Hague Convention, so the court’s authority (if any) was found in the provisions of the provincial Children’s Law Reform Act. That legislation offered the court only very limited jurisdiction in cases like this one, where the children’s habitual residence was not Ontario.
Next, even though the children were refugee claimants, the court found that the mother had not met the evidentiary burden to prove they were at risk of serious harm if returned to Kuwait. The court rejected the mother’s notion that Kuwaiti family law does not protect women and children, after hearing evidence tendered by a court-qualified expert in Sharia law. The court itemized that expert’s evidence this way:
- He acknowledged that Kuwait is one of the more “progressive” Muslim countries.
- He confirmed that violence against women is taken seriously in Kuwait, as is the protection of children.
- He agreed in particular that Law 21, enacted in 2015, is a comprehensive and progressive set of rules aimed at, among other things, protecting children from physical and emotional abuse.
- As a whole, he agreed that Kuwait has a fairly modern system of laws aimed at protecting women, children, and minorities.
…
[The expert] confirmed that to the extent that Sharia is a way of living, its core values include recognition of the obligation of husbands to support their wives and children, and to continue to do so when separated. In terms of custody of children post-separation in the Islamic cultural context, he confirmed that the custodial presumption is in favour of mothers, not fathers, having primary care of young children.
[The expert’s] evidence described a family justice system in Kuwait which is distinct from that in Canada, has different historic cultural underpinnings, and makes some distinctions between male and female presumptive roles in a family. Both men and women, however, have access to and standing in the Kuwaiti courts.
[The expert’s] evidence was generally helpful to the court. However it did not support [the] mother’s contention that she is prevented by as a woman from advancing her position and asserting the children’s rights in the family law courts of Kuwait.
Accordingly, mother has not established that the children would suffer serious harm if the children are returned to Kuwait and the parents continue their family separation litigation there.
However, this was not the only basis for the court’s ruling in the father’s favour: It also found that in many other aspects of the mother’s claims, she was not credible. She gave inconsistent, exaggerated, evasive, and contradictory evidence, and omitted important details if they did not serve her narrative. The court also noted that while the eldest child wanted to stay in Canada, this was not sufficient to “tip the scales” in favour of having all of the children remain here.
In the end, the court ordered that it had no jurisdiction to deal with the children in Ontario, and that they had been wrongly removed from Kuwait by the mother. The children were ordered returned to that country, with the father booking and paying for all of their travels, which were to take place in the mother’s care.
For the full text of the decision, see:
Al-Barqawi v. El-Hassan, 2020 ONSC 1109
