A Bangladeshi couple who came to Canada on a brief vacation ultimately found themselves before the Ontario Court of Appeal, to resolve their hotly-contested custody dispute.
The father and mother had traveled to Canada with their 13-month old daughter in May 2024 for a three-week holiday. Soon after they arrived – and over the objections of the father – the mother decided she wanted to stay permanently. She proposed they make a refugee claim, but the father insisted on returning to Bangladesh where they had established lives, jobs, and the support of family. They disagreed so sharply that the mother called the police. The father was criminally charged.
The mother proceeded to file for asylum for herself, against the father’s wishes. She also wanted to have the child stay with her, at least while her application was processed. The father objected to this as well, and filed an urgent motion for the child’s return to Bangladesh. He also started custody proceedings in that country.
The father ultimately succeeded in obtaining an order from the Ontario court, which found that the mother had offered no evidence that the child would suffer serious harm if she was returned to the father. In fact, the mother freely admitted that the child had been born in Bangladesh, had always lived there, and had access to family members who provided her with support.
The mother then brought her own motion before the Court of Appeal, asking the court to stall (or in legal terms, “stay”) that return order until her pending request for asylum could be fully processed. She asked the court to allow the child to remain with her in Canada until that time.
The Court of Appeal rejected the mother’s request; it ordered the child be returned to Bangladesh immediately. The court began by noting the family’s visit to Canada was always considered a temporary one – with visitor’s visas and using round-trip tickets. A return to where the child had a stable environment and support would be in her best interests. In contrast, in Canada the mother and child were currently living in a shelter with no means of financial support whatsoever.
Importantly, the court noted that unless the mother had a strong claim for asylum, there was no justification for keeping the child in Ontario while the claim was being processed. Yet in this case, she had not provided even a “scintilla of evidence” that her putative claim had merit. Simply launching a refugee application did not preclude a court from making an order to have the child returned to Bangladesh. Otherwise, the court noted, it would be too easy to thwart the law that is intended to apply to children who have been abducted from their habitual home.
The court added:
I would also note …that refugee claims can take months, in some cases years, to resolve. If the child in this case was required to stay in Canada while that process unfolds, she could well wind up spending more time in this foreign country than she has in her home country. If that were to occur, it would then add an additional level of complication as to the best interests of the child if a determination was subsequently made denying the refugee claim. The child would then be returned to her home country with less connection to it than to this country.
With that said, and since this was merely a ruling on a motion, it was still possible that the mother could win her appeal on the full merits. In that instance, the father would have to return the child to Ontario.
For the full text of the decision, see:
A.A. v. Z.M., 2024 ONCA 768 (CanLII), <https://canlii.ca/t/k7clc>
